G.R. No.

153675 April 19, 2007

GOVERNMENT OF HONG KONG SPECIAL ADMINISTRATIVE REGION, represented by the Philippine

Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended,
seeking to nullify the two Orders of the Regional Trial Court (RTC), Branch 8, Manila (presided by respondent Judge
Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated April 10, 2002 denying the
motion to vacate the said Order of December 20, 2001 filed by the Government of Hong Kong Special Administrative
Region, represented by the Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders
were issued by respondent judge with grave abuse of discretion amounting to lack or excess of jurisdiction as there
is no provision in the Constitution granting bail to a potential extraditee.

The facts are:

On January 30, 1995, the Republic of the Philippines and the then British Crown Colony of Hong Kong signed an
"Agreement for the Surrender of Accused and Convicted Persons." It took effect on June 20, 1997.

On July 1, 1997, Hong Kong reverted back to the People’s Republic of China and became the Hong Kong Special
Administrative Region.

Private respondent Muñoz was charged before the Hong Kong Court with three (3) counts of the offense of "accepting
an advantage as agent," in violation of Section 9 (1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong
Kong. He also faces seven (7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong
Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against him. If convicted, he faces
a jail term of seven (7) to fourteen (14) years for each charge.

On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a request for the provisional
arrest of private respondent. The DOJ then forwarded the request to the National Bureau of Investigation (NBI) which,
in turn, filed with the RTC of Manila, Branch 19 an application for the provisional arrest of private respondent.

On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against private respondent. That same
day, the NBI agents arrested and detained him.

On October 14, 1999, private respondent filed with the Court of Appeals a petition for certiorari, prohibition
and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus questioning the
validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of Arrest void.

On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari, docketed as G.R. No. 140520,
praying that the Decision of the Court of Appeals be reversed.

On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ and sustaining the validity of
the Order of Arrest against private respondent. The Decision became final and executory on April 10, 2001.

Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special Administrative Region filed with the RTC
of Manila a petition for the extradition of private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch
10, presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed, in the same case,- a petition for
bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the petition for bail, holding that
there is no Philippine law granting bail in extradition cases and that private respondent is a high "flight risk."

On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil Case No. 99-95733. It was then
raffled off to Branch 8 presided by respondent judge.

On October 30, 2001, private respondent filed a motion for reconsideration of the Order denying his application for
bail. This was granted by respondent judge in an Order dated December 20, 2001 allowing private respondent to post
bail, thus:

In conclusion, this Court will not contribute to accused’s further erosion of civil liberties. The petition for bail is granted
subject to the following conditions:

1. Bail is set at Php750,000.00 in cash with the condition that accused hereby undertakes that he will appear
and answer the issues raised in these proceedings and will at all times hold himself amenable to orders and
processes of this Court, will further appear for judgment. If accused fails in this undertaking, the cash bond
will be forfeited in favor of the government;

2. Accused must surrender his valid passport to this Court;

3. The Department of Justice is given immediate notice and discretion of filing its own motion for hold departure
order before this Court even in extradition proceeding; and

4. Accused is required to report to the government prosecutors handling this case or if they so desire to the
nearest office, at any time and day of the week; and if they further desire, manifest before this Court to require
that all the assets of accused, real and personal, be filed with this Court soonest, with the condition that if the
accused flees from his undertaking, said assets be forfeited in favor of the government and that the
corresponding lien/annotation be noted therein accordingly.

SO ORDERED.

On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it was denied by respondent
judge in his Order dated April 10, 2002.

Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse of discretion amounting to
lack or excess of jurisdiction in admitting private respondent to bail; that there is nothing in the Constitution or statutory
law providing that a potential extraditee has a right to bail, the right being limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed under the Bill of Rights
extends to a prospective extraditee; and that extradition is a harsh process resulting in a prolonged deprivation of
one’s liberty.

Section 13, Article III of the Constitution provides that the right to bail shall not be impaired, thus:

Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided
by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required.

Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is not the first time that this Court
has an occasion to resolve the question of whether a prospective extraditee may be granted bail.

In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding Judge, RTC of Manila, Branch
42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo,1 this Court, speaking through then Associate Justice Artemio
V. Panganiban, later Chief Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
x x x. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as
Section 4, Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of
Philippine criminal laws. It does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt" (De la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ).
It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of
innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ
of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in
criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds
application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion"
(Sec. 18, Art. VIII, Constitution). Hence, the second sentence in the constitutional provision on bail merely emphasizes
the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is
available even in extradition proceedings that are not criminal in nature.

At first glance, the above ruling applies squarely to private respondent’s case. However, this Court cannot ignore the
following trends in international law: (1) the growing importance of the individual person in public international law
who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in
fulfilling their treaty obligations; and (4) the duty of this Court to balance the rights of the individual under our
fundamental law, on one hand, and the law on extradition, on the other.

The modern trend in public international law is the primacy placed on the worth of the individual person and
the sanctity of human rights. Slowly, the recognition that the individual person may properly be a subject of
international law is now taking root. The vulnerable doctrine that the subjects of international law are limited only to
states was dramatically eroded towards the second half of the past century. For one, the Nuremberg and Tokyo trials
after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations
of the laws of war, crimes against peace, and crimes against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former
Yugoslavia. These significant events show that the individual person is now a valid subject of international law.

On a more positive note, also after World War II, both international organizations and states gave recognition and
importance to human rights. Thus, on December 10, 1948, the United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles contained in the said Declaration are now recognized
as customarily binding upon the members of the international community. Thus, in Mejoff v. Director of
Prisons,2 this Court, in granting bail to a prospective deportee, held that under the Constitution,3 the principles
set forth in that Declaration are part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines signed and ratified. Fundamental among the
rights enshrined therein are the rights of every person to life, liberty, and due process.

The Philippines, along with the other members of the family of nations, committed to uphold the fundamental human
rights as well as value the worth and dignity of every person. This commitment is enshrined in Section II, Article II of
our Constitution which provides: "The State values the dignity of every human person and guarantees full respect for
human rights." The Philippines, therefore, has the responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court,
to enable it to decide without delay on the legality of the detention and order their release if justified. In other words,
the Philippine authorities are under obligation to make available to every person under detention such remedies which
safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail. While this Court
in Purganan limited the exercise of the right to bail to criminal proceedings, however, in light of the various international
treaties giving recognition and protection to human rights, particularly the right to life and liberty, a reexamination of
this Court’s ruling in Purganan is in order.
 First, we note that the exercise of the State’s power to deprive an individual of his liberty is not necessarily
limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and
quarantine,4 have likewise been detained.

Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine
jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has
admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this
jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance
the obligation of the Philippines under international conventions to uphold human rights.

The 1909 case of US v. Go-Sioco5 is illustrative. In this case, a Chinese facing deportation for failure to secure the
necessary certificate of registration was granted bail pending his appeal. After noting that the prospective deportee
had committed no crime, the Court opined that "To refuse him bail is to treat him as a person who has committed the
most serious crime known to law;" and that while deportation is not a criminal proceeding, some of the machinery
used "is the machinery of criminal law." Thus, the provisions relating to bail was applied to deportation proceedings.

In Mejoff v. Director of Prisons6 and Chirskoff v. Commission of Immigration,7 this Court ruled that foreign nationals
against whom no formal criminal charges have been filed may be released on bail pending the finality of an order of
deportation. As previously stated, the Court in Mejoff relied upon the Universal declaration of Human Rights in
sustaining the detainee’s right to bail.

If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition
cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the
innocence or guilt of the person detained is not in issue.

Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various
treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. Under these
treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of
every individual is not impaired.

Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law) defines "extradition" as "the
removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to
enable the requesting state or government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government."

Extradition has thus been characterized as the right of a foreign power, created by treaty, to demand the surrender of
one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state to
surrender him to the demanding state.8 It is not a criminal proceeding.9 Even if the potential extraditee is a criminal,
an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such
punishment may follow extradition.10 It is sui generis, tracing its existence wholly to treaty obligations between different
nations.11 It is not a trial to determine the guilt or innocence of the potential extraditee.12 Nor is it a full-blown
civil action, but one that is merely administrative in character.13 Its object is to prevent the escape of a person accused
or convicted of a crime and to secure his return to the state from which he fled, for the purpose of trial or punishment.14

But while extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of
liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is
also "the machinery of criminal law." This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest
of justice." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional
arrest of the accused, pending receipt of the request for extradition;" and that release from provisional arrest
"shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently."

Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks of a criminal process. A
potential extraditee may be subjected to arrest, to a prolonged restraint of liberty, and forced to transfer to
the demanding state following the proceedings. "Temporary detention" may be a necessary step in the process
of extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained incarcerated until
December 20, 2001, when the trial court ordered his admission to bail. In other words, he had been detained for
over two (2) years without having been convicted of any crime. By any standard, such an extended period of
detention is a serious deprivation of his fundamental right to liberty. In fact, it was this prolonged deprivation of liberty
which prompted the extradition court to grant him bail.

While our extradition law does not provide for the grant of bail to an extraditee, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to due process under the Constitution.

The applicable standard of due process, however, should not be the same as that in criminal proceedings. In the
latter, the standard of due process is premised on the presumption of innocence of the accused. As Purganan correctly
points out, it is from this major premise that the ancillary presumption in favor of admitting to bail arises. Bearing in
mind the purpose of extradition proceedings, the premise behind the issuance of the arrest warrant and the "temporary
detention" is the possibility of flight of the potential extraditee. This is based on the assumption that such extraditee is
a fugitive from justice.15 Given the foregoing, the prospective extraditee thus bears the onus probandi of showing that
he or she is not a flight risk and should be granted bail.

The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the
Extradition Treaty it entered into with the Hong Kong Special Administrative Region. Failure to comply with these
obligations is a setback in our foreign relations and defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its treaty obligations, the Philippines should diminish a potential extraditee’s rights to life,
liberty, and due process. More so, where these rights are guaranteed, not only by our Constitution, but also by
international conventions, to which the Philippines is a party. We should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for the grant is satisfactorily met.

An extradition proceeding being sui generis, the standard of proof required in granting or denying bail can neither be
the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail
in extradition cases. According to him, this standard should be lower than proof beyond reasonable doubt but higher
than preponderance of evidence. The potential extraditee must prove by "clear and convincing evidence" that he is
not a flight risk and will abide with all the orders and processes of the extradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not a flight risk.
Consequently, this case should be remanded to the trial court to determine whether private respondent may be
granted bail on the basis of "clear and convincing evidence."

WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to determine whether private
respondent is entitled to bail on the basis of "clear and convincing evidence." If not, the trial court should order the
cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with
dispatch.

SO ORDERED.
G.R. No. 176830 February 11, 2014

SATURNINO C. OCAMPO, Petitioner,

vs.
HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of Hilongos,
Leyte, Branch 18, CESAR M. MERIN, in. his capacity as Approving Prosecutor and Officer-in-Charge,
ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his capacity as
Secretary of the Department of Justice, Respondents.

x-----------------------x

G.R. No. 185587

RANDALL B. ECHANIS, Petitioner,

vs.
HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 32, HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of
Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and Officer-in-
Charge, ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his
capacity as Secretary of the Department of Justice, Respondents.

x-----------------------x

G.R. No. 185636

RAFAEL G. BAYLOSIS, Petitioner,

vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 32, HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of
Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and Officer-in-
Charge, ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his
capacity as Secretary of the Department of Justice, Respondents.

x-----------------------x

G.R. No. 190005

VICENTE P. LADLAD, Petitioner,

vs.
HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 32, and the PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

SERENO, CJ.:

On 26 August 2006, a mass grave was discovered by elements of the 43rd Infantry Brigade of the Philippine Army at
Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.1 The mass grave contained skeletal remains of individuals
believed to be victims of "Operation Venereal Disease" (Operation VD) launched by members of the Communist Party
of the Philippines/New People’s Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) to purge their
ranks of suspected military informers.

While the doctrine of hierarchy of courts normally precludes a direct invocation of this Court’s jurisdiction, we take
cognizance of these petitions considering that petitioners have chosen to take recourse directly before us and that the
cases are of significant national interest.
Petitioners have raised several issues, but most are too insubstantial to require consideration. Accordingly, in the
exercise of sound judicial discretion and economy, this Court will pass primarily upon the following:

1. Whether petitioners were denied due process during preliminary investigation and in the issuance of the
warrants of arrest.

2. Whether the murder charges against petitioners should be dismissed under the political offense doctrine.

ANTECEDENT FACTS

These are petitions for certiorari and prohibition2 seeking the annulment of the orders and resolutions of public
respondents with regard to the indictment and issuance of warrants of arrest against petitioners for the crime of
multiple murder.

Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine National Police (PNP) Regional Office
8 and Staff Judge Advocate Captain Allan Tiu (Army Captain Tiu) of the 8th Infantry Division of the Philippine Army
sent 12 undated letters to the Provincial Prosecutor of Leyte through Assistant Provincial Prosecutor Rosulo U. Vivero
(Prosecutor Vivero).3 The letters requested appropriate legal action on 12 complaint-affidavits attached therewith
accusing 71 named members of the Communist Party of the Philippines/New People’s Army/National Democratic
Front of the Philippines (CPP/NPA/NDFP) of murder, including petitioners herein along with several other unnamed
members.

The letters narrated that on 26 August 2006, elements of the 43rd Infantry Brigade of the Philippine Army discovered
a mass grave site of the CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.4 Recovered
from the grave site were 67 severely deteriorated skeletal remains believed to be victims of Operation VD.5

The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8 was immediately dispatched to the
mass grave site to conduct crime investigation, and to collect, preserve and analyze the skeletal remains.6 Also, from
11-17 September 2006, an investigation team composed of intelligence officers, and medico-legal and DNA experts,
conducted forensic crime analysis and collected from alleged relatives of the victims DNA samples for matching.7

The Initial Specialist Report8 dated 18 September 2006 issued by the PNP Crime Laboratory in Camp Crame, Quezon
City, was inconclusive with regard to the identities of the skeletal remains and even the length of time that they had
been buried. The report recommended the conduct of further tests to confirm the identities of the remains and the
time window of death.9

However, in a Special Report10 dated 2 October 2006, the Case Secretariat of the Regional and National Inter-Agency
Legal Action Group (IALAG) came up with the names of ten (10) possible victims after comparison and examination
based on testimonies of relatives and witnesses.11

The 12 complaint-affidavits were from relatives of the alleged victims of Operation VD. All of them swore that their
relatives had been abducted or last seen with members of the CPP/NPA/NDFP and were never seen again.

They also expressed belief that their relatives’ remains were among those discovered at the mass grave site.

Also attached to the letters were the affidavits of Zacarias Piedad,12 Leonardo C. Tanaid, Floro M. Tanaid, Numeriano
Beringuel, Glecerio Roluna and Veronica P. Tabara. They narrated that they were former members of the
CPP/NPA/NDFP.13 According to them, Operation VD was ordered in 1985 by the CPP/NPA/NDFP Central
Committee.14 Allegedly, petitioners Saturnino C. Ocampo (Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G.
Baylosis (Baylosis),17 and Vicente P. Ladlad (Ladlad)18 were then members of the Central Committee.

According to these former members, four sub-groups were formed to implement Operation VD, namely, (1) the Intel
Group responsible for gathering information on suspected military spies and civilians who would not support the
movement; (2) the Arresting Group charged with their arrests; (3) the Investigation Group which would subject those
arrested to questioning; and (4) the Execution Group or the "cleaners" of those confirmed to be military spies and
civilians who would not support the movement.19
From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and executed by members of the
CPP/NPA/NDF20 pursuant to Operation VD.21

On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a subpoena requiring, among others,
petitioners to submit their counter-affidavits and those of their witnesses.22 Petitioner Ocampo submitted his counter-
affidavit.23 Petitioners Echanis24 and Baylosis25 did not file counter-affidavits because they were allegedly not served
the copy of the complaint and the attached documents or evidence. Counsel of petitioner Ladlad made a formal entry
of appearance on 8 December 2006 during the preliminary investigation.26 However, petitioner Ladlad did not file a
counter-affidavit because he was allegedly not served a subpoena.27

In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended the filing of an Information for 15 counts
of multiple murder against 54 named members of the CPP/NPA/NDFP, including petitioners herein, for the death of
the following: 1) Juanita Aviola, 2) Concepcion Aragon, 3) Gregorio Eras, 4) Teodoro Recones, Jr., 5) Restituto Ejoc,
6) Rolando Vasquez, 7) Junior Milyapis, 8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel, 11) Romeo Tayabas,
12) Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto Prado.29

Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid, Numeriano Beringuel and Glecerio
Roluna be dropped as respondents and utilized as state witnesses, as their testimonies were vital to the success of
the prosecution.30 The Resolution was silent with regard to Veronica Tabara.

The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte, Branch 18 (RTC Hilongos, Leyte)
presided by Judge Ephrem S. Abando (Judge Abando) on 28 February 2007, and docketed as Criminal Case No. H-
1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory Hearing dated 5 March 2007 prior to
receiving a copy of the Resolution recommending the filing of the Information.32

On 6 March 2007, Judge Abando issued an Order finding probable cause "in the commission by all mentioned accused
of the crime charged."33 He ordered the issuance of warrants of arrest against them with no recommended bail for their
temporary liberty.34

On 16 March 2007, petitioner Ocampo filed before us this special civil action for certiorari and prohibition under Rule
65 of the Rules of Court and docketed as G.R. No. 176830 seeking the annulment of the 6 March 2007 Order of Judge
Abando and the 16 February 2007 Resolution of Prosecutor Vivero.35 The petition prayed for the unconditional release
of petitioner Ocampo from PNP custody, as well as the issuance of a temporary restraining order/ writ of preliminary
injunction to restrain the conduct of further proceedings during the pendency of the petition.36

Petitioner Ocampo argued that a case for rebellion against him and 44 others (including petitioners Echanis and
Baylosis37 and Ladlad38) docketed as Criminal Case No. 06-944 was then pending before the RTC Makati, Branch 150
(RTC Makati).39 Putting forward the political offense doctrine, petitioner Ocampo argues that common crimes, such as
murder in this case, are already absorbed by the crime of rebellion when committed as a necessary means, in
connection with and in furtherance of rebellion.40

We required41 the Office of the Solicitor General (OSG) to comment on the petition and the prayer for the issuance of
a temporary restraining order/ writ of preliminary injunction, and set42 the case for oral arguments on 30 March 2007.
The OSG filed its Comment on 27 March 2007.43

The following were the legal issues discussed by the parties during the oral arguments:

1. Whether the present petition for certiorari and prohibition is the proper remedy of petitioner Ocampo;

2. Assuming it is the proper remedy, whether he was denied due process during preliminary investigation and
in the issuance of the warrant of arrest;

3. Whether the murder charges against him are already included in the rebellion charge against him in the
RTC.44

Afterwards, the parties were ordered to submit their memoranda within 10 days.45 On 3 April 2007, the Court ordered
the provisional release of petitioner Ocampo under a ₱100,000 cash bond.46
Acting on the observation of the Court during the oral arguments that the single Information filed before the RTC
Hilongos, Leyte was defective for charging 15 counts of murder, the prosecution filed a Motion to Admit Amended
Information and New Informations on 11 April 2007.47 In an Order dated 27 July 2007, Judge Abando held in abeyance
the resolution thereof and effectively suspended the proceedings during the pendency of G.R. No. 176830 before this
Court.48

While the proceedings were suspended, petitioner Echanis was arrested on 28 January 2008 by virtue of the warrant
of arrest issued by Judge Abando on 6 March 2007.49 On 1 February 2008, petitioners Echanis and Baylosis filed a
Motion for Judicial Reinvestigation/ Determination of Probable Cause with Prayer to Dismiss the Case Outright and
Alternative Prayer to Recall/ Suspend Service of Warrant.50

On 30 April 2008, Judge Abando issued an Order denying the motion.51 Petitioners Echanis and Baylosis filed a Motion
for Reconsideration52 dated 30 May 2008, but before being able to rule thereon, Judge Abando issued an Order dated
12 June 2008 transmitting the records of Criminal Case No. H-1581 to the Office of the Clerk of Court, RTC
Manila.53 The Order was issued in compliance with the Resolution dated 23 April 2008 of this Court granting the request
of then Secretary of Justice Raul Gonzales to transfer the venue of the case.

The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by Judge Thelma Bunyi-Medina (Judge
Medina) and re-docketed as Criminal Case No. 08-262163.54 Petitioner Echanis was transferred to the PNP Custodial
Center in Camp Crame, Quezon City. On 12 August 2008, petitioners Echanis and Baylosis filed their Supplemental
Arguments to Motion for Reconsideration.55

In an Order56 dated 27 October 2008, Judge Medina suspended the proceedings of the case pending the resolution
of G.R. No. 176830 by this Court.

On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to Quash and/or Dismiss.57

On 23 December 2008, petitioner Echanis filed before us a special civil action for certiorari and prohibition under Rule
65 of the Rules of Court seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27 October 2008
Order of Judge Medina.58 The petition, docketed as G.R. No. 185587, prayed for the unconditional and immediate
release of petitioner Echanis, as well as the issuance of a temporary restraining order/writ of preliminary injunction to
restrain his further incarceration.59

On 5 January 2009, petitioner Baylosis filed before us a special civil action for certiorari and prohibition under Rule 65
of the Rules of Court also seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27 October
2008 Order of Judge Medina.60 The petition, docketed as G.R. No. 185636, prayed for the issuance of a temporary
restraining order/ writ of preliminary injunction to restrain the implementation of the warrant of arrest against petitioner
Baylosis.61

The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009.62

On 3 March 2009, the Court ordered the further consolidation of these two cases with G.R. No. 176830.63 We
required64 the OSG to comment on the prayer for petitioner Echanis’s immediate release, to which the OSG did not
interpose any objection on these conditions: that the temporary release shall only be for the purpose of his attendance
and participation in the formal peace negotiations between the Government of the Republic of the Philippines (GRP)
and the CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release shall not exceed six (6)
months.65 The latter condition was later modified, such that his temporary liberty shall continue for the duration of his
actual participation in the peace negotiations.66

On 11 August 2009, the Court ordered the provisional release of petitioner Echanis under a ₱100,000 cash bond, for
the purpose of his participation in the formal peace negotiations.67

Meanwhile, the Department of Justice (DOJ) filed its Opposition68 to petitioner Ladlad’s motion to quash before the
RTC Manila. The trial court conducted a hearing on the motion on 13 February 2009.69

On 6 May 2009, Judge Medina issued an Order70 denying the motion to quash. The motion for reconsideration filed
by petitioner Ladlad was also denied on 27 August 2009.71
On 9 November 2009, petitioner Ladlad filed before us a special civil action for certiorari under Rule 65 of the Rules
of Court seeking the annulment of the 6 May 2009 and 27 August 2009 Orders of Judge Medina.72 The petition was
docketed as G.R. No. 190005.

On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R. Nos. 176830, 185587 and
185636.73 We also required the OSG to file its comment thereon. The OSG submitted its Comment74 on 7 May 2010.

On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos. 185636 and 185587. 75 These
Comments were filed by the OSG on 13 December 201076 and on 21 January 2011,77 respectively. Petitioners Echanis
and Baylosis filed their Consolidated Reply78 on 7 June 2011.

On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail.79 On 21 July 2011, petitioner Baylosis filed A
Motion to Allow Petitioner to Post Bail.80 The OSG interposed no objection to the grant of a ₱100,000 cash bail to them
considering that they were consultants of the NDFP negotiating team, which was then holding negotiations with the
GRP peace panel for the signing of a peace accord.81

On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis and fixed their bail in the amount of
₱100,000, subject to the condition that their temporary release shall be limited to the period of their actual participation
in the peace negotiations.82

Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.

OUR RULING

Petitioners were accorded due process during preliminary investigation and in the issuance of the warrants of arrest.

A. Preliminary Investigation

A preliminary investigation is "not a casual affair."84 It is conducted to protect the innocent from the embarrassment,
expense and anxiety of a public trial.85 While the right to have a preliminary investigation before trial is statutory rather
than constitutional, it is a substantive right and a component of due process in the administration of criminal justice.86

In the context of a preliminary investigation, the right to due process of law entails the opportunity to be heard. 87 It
serves to accord an opportunity for the presentation of the respondent’s side with regard to the accusation. Afterwards,
the investigating officer shall decide whether the allegations and defenses lead to a reasonable belief that a crime has
been committed, and that it was the respondent who committed it. Otherwise, the investigating officer is bound to
dismiss the complaint.

"The essence of due process is reasonable opportunity to be heard and submit evidence in support of one's
defense."88 What is proscribed is lack of opportunity to be heard.89 Thus, one who has been afforded a chance to
present one’s own side of the story cannot claim denial of due process.90

Petitioners Echanis and Baylosis allege that they did not receive a copy of the complaint and the attached documents
or evidence.91 Petitioner Ladlad claims that he was not served a subpoena due to the false address indicated in the
12 undated letters of P C/Insp. Almaden and Army Captain Tiu to Prosecutor Vivero. 92 Furthermore, even though his
counsels filed their formal entry of appearance before the Office of the Prosecutor, petitioner Ladlad was still not sent
a subpoena through his counsels’ addresses.93 Thus, they were deprived of the right to file counter-affidavits.

Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp. Almaden and Army Captain Tiu,
surreptitiously inserted the Supplemental Affidavit of Zacarias Piedad in the records of the case without furnishing
petitioner Ocampo a copy.94 The original affidavit of Zacarias Piedad dated 14 September 2006 stated that a meeting
presided by petitioner Ocampo was held in 1984, when the launching of Operation VD was agreed upon.95 Petitioner
Ocampo refuted this claim in his Counter-affidavit dated 22 December 2006 stating that he was in military custody
from October 1976 until his escape in May 1985.96 Thereafter, the Supplemental Affidavit of Zacarias Piedad dated 12
January 2007 admitted that he made a mistake in his original affidavit, and that the meeting actually took place in
June 1985.97 Petitioner Ocampo argues that he was denied the opportunity to reply to the Supplemental Affidavit by
not being furnished a copy thereof.
Petitioner Ocampo also claims that he was denied the right to file a motion for reconsideration or to appeal the
Resolution of Prosecutor Vivero, because the latter deliberately delayed the service of the Resolution by 19 days,
effectively denying petitioner Ocampo his right to due process.98

As to the claim of petitioners Echanis and Baylosis, we quote the pertinent portion of Prosecutor Vivero’s Resolution,
which states:

In connection with the foregoing and pursuant to the Revised Rules of Criminal Procedure[,] the respondents were
issued and served with Subpoena at their last known address for them to submit their counter-affidavits and that of
their witnesses.

Majority of the respondents did not submit their counter-affidavits because they could no longer be found in their last
known address, per return of the subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim, Maureen
Palejaro and Ruben Manatad submitted their Counter-Affidavits. However, Vicente Ladlad and Jasmin Jerusalem
failed to submit the required Counter Affidavits in spite entry of appearance by their respective counsels.99

Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the complaint based on the evidence
before him if a respondent could not be subpoenaed. As long as efforts to reach a respondent were made, and he
was given an opportunity to present countervailing evidence, the preliminary investigation remains valid.100 The rule
was put in place in order to foil underhanded attempts of a respondent to delay the prosecution of offenses.101

In this case, the Resolution stated that efforts were undertaken to serve subpoenas on the named respondents at
their last known addresses. This is sufficient for due process. It was only because a majority of them could no longer
be found at their last known addresses that they were not served copies of the complaint and the attached documents
or evidence.

Petitioner Ladlad claims that his subpoena was sent to the nonexistent address "53 Sct. Rallos St., QC,"102 which had
never been his address at any time.103 In connection with this claim, we take note of the fact that the subpoena to Fides
Lim, petitioner Ladlad’s wife,104 was sent to the same address, and that she was among those mentioned in the
Resolution as having timely submitted their counter-affidavits.

Despite supposedly never receiving a subpoena, petitioner Ladlad’s counsel filed a formal entry of appearance on 8
December 2006.105 Prosecutor Vivero had a reason to believe that petitioner Ladlad had received the subpoena and
accordingly instructed his counsel to prepare his defense.

Petitioner Ladlad, through his counsel, had every opportunity to secure copies of the complaint after his counsel’s
formal entry of appearance and, thereafter, to participate fully in the preliminary investigation. Instead, he refused to
participate.

We have previously cautioned that "litigants represented by counsel should not expect that all they need to do is sit
back, relax and await the outcome of their case."106 Having opted to remain passive during the preliminary
investigation, petitioner Ladlad and his counsel cannot now claim a denial of due process, since their failure to file a
counter-affidavit was of their own doing.

Neither do we find any merit in petitioner Ocampo’s allegation of collusion to surreptitiously insert the Supplemental
Affidavit of Zacarias Piedad in the records. There was nothing surreptitious about the Supplemental Affidavit since it
clearly alludes to an earlier affidavit and admits the mistake committed regarding the date of the alleged meeting. The
date of the execution of the Supplemental Affidavit was also clearly stated. Thus, it was clear that it was executed
after petitioner Ocampo had submitted his counter-affidavit. Should the case go to trial, that will provide petitioner
Ocampo with the opportunity to question the execution of Zacarias Piedad’s Supplemental Affidavit.

Neither can we uphold petitioner Ocampo’s contention that he was denied the right to be heard. For him to claim that
he was denied due process by not being furnished a copy of the Supplemental Affidavit of Zacarias Piedad would
imply that the entire case of the prosecution rested on the Supplemental Affidavit. The OSG has asserted that the
indictment of petitioner Ocampo was based on the collective affidavits of several other witnesses 107 attesting to the
allegation that he was a member of the CPP/NPA/NDFP Central Committee, which had ordered the launch of
Operation VD.
As to his claim that he was denied the right to file a motion for reconsideration or to appeal the Resolution of Prosecutor
Vivero due to the 19-day delay in the service of the Resolution, it must be pointed out that the period for filing a motion
for reconsideration or an appeal to the Secretary of Justice is reckoned from the date of receipt of the resolution of
the prosecutor, not from the date of the resolution. This is clear from Section 3 of the 2000 National Prosecution
Service Rule on Appeal:

Sec. 3. Period to appeal. – The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the
denial of the motion for reconsideration/ reinvestigation if one has been filed within fifteen (15) days from receipt of
the assailed resolution. Only one motion for reconsideration shall be allowed. (Emphasis supplied)

Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on 12 March 2007,108 the former had until
27 March 2007 within which to file either a motion for reconsideration before the latter or an appeal before the
Secretary of Justice. Instead, petitioner Ocampo chose to file the instant petition for certiorari directly before this Court
on 16 March 2007.

B. Issuance of the Warrants of Arrest

Article III, Section 2 of the Constitution provides that "no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce."

Petitioner Ocampo alleges that Judge Abando did not comply with the requirements of the Constitution in finding the
existence of probable cause for the issuance of warrants of arrest against petitioners.109

Probable cause for the issuance of a warrant of arrest has been defined as "such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person
sought to be arrested."110 Although the Constitution provides that probable cause shall be determined by the judge
after an examination under oath or an affirmation of the complainant and the witnesses, we have ruled that a hearing
is not necessary for the determination thereof.111 In fact, the judge’s personal examination of the complainant and the
witnesses is not mandatory and indispensable for determining the aptness of issuing a warrant of arrest.112

It is enough that the judge personally evaluates the prosecutor’s report and supporting documents showing the
existence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest; or if, on the basis
of his evaluation, he finds no probable cause, to disregard the prosecutor's resolution and require the submission of
additional affidavits of witnesses to aid him in determining its existence.113

Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly examined the records submitted by
Prosecutor Vivero, the judge would have inevitably dismissed the charge against them.114 Additionally, petitioner
Ocampo alleges that Judge Abando did not point out facts and evidence in the record that were used as bases for his
finding of probable cause to issue a warrant of arrest.115

The determination of probable cause for the issuance of warrants of arrest against petitioners is addressed to the
sound discretion of Judge Abando as the trial judge.116 Further elucidating on the wide latitude given to trial judges in
the issuance of warrants of arrest, this Court stated in Sarigumba v. Sandiganbayan117 as follows:

x x x. The trial court's exercise of its judicial discretion should not, as a general rule, be interfered with in the absence
of grave abuse of discretion. Indeed, certiorari will not lie to cure errors in the trial court's appreciation of the evidence
of the parties, the conclusion of facts it reached based on the said findings, as well as the conclusions of law. x x x.

Whether or not there is probable cause for the issuance of warrants for the arrest of the accused is a question of fact
based on the allegations in the Informations, the Resolution of the Investigating Prosecutor, including other documents
and/or evidence appended to the Information.

Here, the allegations of petitioners point to factual matters indicated in the affidavits of the complainants and witnesses
as bases for the contention that there was no probable cause for petitioners’ indictment for multiple murder or for the
issuance of warrants for their arrest. As stated above, the trial judge’s appreciation of the evidence and conclusion of
facts based thereon are not interfered with in the absence of grave abuse of discretion. Again, "he sufficiently complies
with the requirement of personal determination if he reviews the [I]nformation and the documents attached thereto,
and on the basis thereof forms a belief that the accused is probably guilty of the crime with which he is being
charged."118

Judge Abando’s review of the Information and the supporting documents is shown by the following portion of the
judge’s 6 March 2007 Order:

On the evaluation of the Resolution and its Information as submitted and filed by the Provincial Prosecution of Leyte
Province supported by the following documents: Affidavits of Complainants, Sworn Statements of Witnesses and other
pertinent documents issued by the Regional Crime Laboratory Office, PNP, Region VIII and Camp Crame, Quezon
City, pictures of the grave site and skeletal remains, this court has the findings [sic] of probable cause in the
commission by all mentioned accused of the crime charged.119

At bottom, issues involving the finding of probable cause for an indictment and issuance of a warrant of arrest, as
petitioners are doubtless aware, are primarily questions of fact that are normally not within the purview of a petition
for certiorari,120 such as the petitions filed in the instant consolidated cases.

The political offense doctrine is not a ground to dismiss the charge against petitioners prior to a determination by the
trial court that the murders were committed in furtherance of rebellion.

Under the political offense doctrine, "common crimes, perpetrated in furtherance of a political offense, are divested of
their character as "common" offenses and assume the political complexion of the main crime of which they are mere
ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the
same, to justify the imposition of a graver penalty."121

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion.122 Thus, when a killing is
committed in furtherance of rebellion, the killing is not homicide or murder. Rather, the killing assumes the political
complexion of rebellion as its mere ingredient and must be prosecuted and punished as rebellion alone.

However, this is not to say that public prosecutors are obliged to consistently charge respondents with simple rebellion
instead of common crimes. No one disputes the well-entrenched principle in criminal procedure that the institution of
criminal charges, including whom and what to charge, is addressed to the sound discretion of the public prosecutor.123

But when the political offense doctrine is asserted as a defense in the trial court, it becomes crucial for the court to
determine whether the act of killing was done in furtherance of a political end, and for the political motive of the act to
be conclusively demonstrated.124

Petitioners aver that the records show that the alleged murders were committed in furtherance of the CPP/NPA/NDFP
rebellion, and that the political motivation behind the alleged murders can be clearly seen from the charge against the
alleged top leaders of the CPP/NPA/NDFP as co-conspirators.

We had already ruled that the burden of demonstrating political motivation must be discharged by the defense, since
motive is a state of mind which only the accused knows.125 The proof showing political motivation is adduced during
trial where the accused is assured an opportunity to present evidence supporting his defense. It is not for this Court
to determine this factual matter in the instant petitions.

As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte v. CA, 126 if during trial, petitioners
are able to show that the alleged murders were indeed committed in furtherance of rebellion, Section 14, Rule 110 of
the Rules of Court provides the remedy, to wit:

SECTION 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of
the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any
accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order
shall be furnished all parties, especially the offended party. (n)

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance
with Section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial. (Emphasis supplied)

Thus, if it is shown that the proper charge against petitioners should have been simple rebellion, the trial court shall
dismiss the murder charges upon the filing of the Information for simple rebellion, as long as petitioners would not be
placed in double jeopardy.

Section 7, Rule 117 of the Rules of Court, states:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the
case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction
and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the
case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former
complaint or information.

Based on the above provision, double jeopardy only applies when: (1) a first jeopardy attached; (2) it has been validly
terminated; and (3) a second jeopardy is for the same offense as in the first.127

A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has been dismissed or
otherwise terminated without his express consent, by a competent court in a valid indictment for which the accused
has entered a valid plea during arraignment.128

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and penalized under Article 134 in
relation to Article 135 of the Revised Penal Code, docketed as Criminal Case No. 06-944 was filed before the RTC
Makati against petitioners and several others.129

However, petitioners were never arraigned in Criminal Case No. 06-944. Even before the indictment for rebellion was
1awp++i 1

filed before the RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a petition before this Court to
seek the nullification of the Orders of the DOJ denying their motion for the inhibition of the members of the prosecution
panel due to lack of impartiality and independence.130 When the indictment was filed, petitioners Ocampo, Echanis and
Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case No. 06-944.131 We eventually ordered
the dismissal of the rebellion case. It is clear then that a first jeopardy never had a chance to attach.

Petitioner Ocampo shall remain on provisional liberty under the ₱100,000 cash bond posted before the Office of the
Clerk of Court. He shall remain on provisional liberty until the termination of the proceedings before the RTC Manila. 1âw phi 1

The OSG has given its conformity to the provisional liberty of petitioners Echanis, Baylosis and Ladlad in view of the
ongoing peace negotiations. Their provisional release from detention under the cash bond of ₱100,000 each shall
continue under the condition that their temporary release shall be limited to the period of their actual participation as
CPP-NDF consultants in the peace negotiations with the government or until the termination of the proceedings before
the RTC Manila, whichever is sooner. It shall be the duty of the government to inform this Court the moment that
peace negotiations are concluded.

WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of Manila, Branch 32, is hereby
ORDERED to proceed with dispatch with the hearing of Criminal Case No. 08-262163. Petitioner Saturnino C.
Ocampo shall remain on temporary liberty under the same bail granted by this Court until the termination of the
proceedings before the RTC Manila. Petitioners Randall B. Echanis, Rafael G. Baylosis and Vicente P. Ladlad shall
remain on temporary liberty under the same bail granted by this Court until their actual participation as CPP-NDF
consultants in the peace negotiations with the government are concluded or terminated, or until the termination of the
proceedings before the RTC Manila, whichever is sooner. SO ORDERED.
 G.R. Nos. 212140-41 January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL
BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses
which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and,
where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order and/or Writ of
Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman), Field Investigation Office (FIO)
of the Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod) (collectively,
respondents), from conducting further proceedings in OMB-CC-13-03013 and OMB-C-C-13-0397 until the present
Petition has been resolved with finality; and (2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada
(Sen. Estrada)was denied due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the
proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the
challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose "Jinggoy" P. Ejercito
Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-
0397,4 entitled Field Investigation Office, Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-Estrada, et al., refers
to the complaint for Plunder as defined underRA No. 7080 and for violation of Section 3(e) of RA No. 3019 (Anti-Graft
and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0313,
filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings for Plunder as defined in
RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9
January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0397, filed
by the FIO of the Ombudsman, which prayed, among others, that criminal proceedings for Plunder, as defined in RA
No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his
counter affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between 9 December
2013 and 14 March 2014.5

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-0313. In his Request, Sen.
Estrada asked for copies of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

 (c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional witnesses
for the Complainants.6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the evidence submitted by the
complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and to ‘have access
to the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent portions of the
assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules of
Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle respondent
[Sen. Estrada]to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause …

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the Office of the
Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require
the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10)
days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on
the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-
affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a copy of the
Complaint and its supporting affidavits and documents; and this Office complied with this requirement when it
furnished [Sen. Estrada] with the foregoing documents attached to the Orders to File Counter-Affidavit dated 19
November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Office’s Rules of Procedure which entitles respondent to be
furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G.
Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as
the Rules of Procedure of the Office of the Ombudsman, the respondents are only required to furnish their counter-
affidavits and controverting evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation depend on the
rights granted to him by law and these cannot be based on whatever rights he believes [that] he is entitled to or those
that may be derived from the phrase "due process of law." Thus, this Office cannot grant his motion to be furnished
with copies of all the filings by the other parties. Nevertheless, he should be furnished a copy of the Reply of
complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has been filed by
complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless entitled to be furnished a
copy of the Reply if complainant opts to file such pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution9 which
found probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of
violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated
28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the charges
against him. Without filing a Motion for Reconsideration of the Ombudsman’s 27 March 2014 Order denying his
Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and set aside the 27
March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014, ACTED
WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law, except through this Petition." 11 Sen. Estrada applied for
the issuance of a temporary restraining order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a
judgment declaring that (a) he has been denied due process of law, and as a consequence thereof, (b) the Order
dated 27 March 2014, as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and
affected bythe issuance of the 27 March 2014 Order, are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a Joint Order
furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura,
Gregoria Buenaventura, and Alexis Sevidal, and directing him to comment thereon within a non-extendible period of
five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-C-C-13-0313
and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of counter-affidavits of his co-
respondents deprived him of his right to procedural due process, and he has filed the present Petition before thisCourt.
The Ombudsman denied Sen. Estrada’s motion to suspend in an Order dated 15 May 2014. Sen. Estrada filed a
motion for reconsideration of the Order dated 15 May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen. Estrada had not filed
a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman issued a Joint Order in OMB-
C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen. Estrada’s
motion for reconsideration dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos, Figura,
Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March 2014 and before the promulgation of the
assailed Joint Resolution, this Office thereafter reevaluated the request and granted it byOrder dated 7 May 2014
granting his request. Copies of the requested counter-affidavits were appended to the copy of the Order dated 7 May
2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding in light of its
grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the above-
named co-respondents’ claims.
In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to procedural due
process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the Officeof the
Solicitor General, filed their Comment to the present Petition. The public respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE
OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY

RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estrada’s resort
to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for reconsideration
of the 27 March 2014 Order or incorporated the alleged irregularity in his motion for reconsideration of the 28 March
2014 Joint Resolution. There was also no violation of Sen. Estrada’s right to due process because there is no rule
which mandates that a respondent such as Sen. Estrada be furnished with copies of the submissions of his
corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada insisted that he
was denied due process. Although Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata,
Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuason’s counter-affidavits, heclaimed that he was
not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the Petition isnot
rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because there is a recurring
violation of his right to due process. Sen. Estrada also insists that there is no forum shopping as the present
Petition arose from an incident in the main proceeding, and that he has no other plain, speedy, and adequate
remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his application for the issuance of a
 temporary restraining order and/or writ of preliminary injunction to restrain public respondents from conducting
further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of Sen. Estrada’s Request
did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen. Estrada’s constitutional right to
due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-
affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as Rule II of
Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall
be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits
shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of who must certify thathe personally
examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he
finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy
of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine
the evidence submitted by the complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to
present against the respondent, and these shall be made available for examination or copying by the
respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by
the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party ora
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They
may, however, submit to the investigating officer questions which may be asked to the party or witness
concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents
or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. Section 4. Resolution of investigating prosecutor and its
 review.— If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath in the information that he, or as shown by the record,
an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the
accused was informed of the complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman orhis deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10)
days from their receipt thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority
or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct
any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor,
he shall direct the prosecutor concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties.
The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in
Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A. 3019,as amended, R.A.
1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other offenses
committed by public officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be conducted by any of the
following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

 5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court, subject
to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require
the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10) days
from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on
thecomplainant. The complainant may file reply affidavits within ten (10) days after service of the counter-
affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed
by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence
on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainant’s affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been served,
does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence
on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the
case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during
which the parties shall be afforded the opportunity to be present but without the right to examine or cross-
examine the witness being questioned. Where the appearance of the parties or witnesses is impracticable,
the clarificatory questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness concerned who shall be
required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of
the case together with his resolution to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases.

xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally approved by the
Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or reinvestigation of anapproved order
or resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office of the
Ombudsman, or the proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding Information in
court on the basis of the finding of probable cause in the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents violates his
constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a
compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent with
the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen. Estrada’s
claim. What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to furnish the
respondent with a copy of the complaint and the supporting affidavits and documents at the time the order to submit
the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of Procedure of
the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his witnesses] have been
secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits and other supporting
documents, directing the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits x x x."
At this point, there is still no counter-affidavit submitted by any respondent. Clearly, what Section 4(b) refers to are
affidavits of the complainant and his witnesses, not the affidavits of the co-respondents. Obviously, the counter-
affidavits of the co-respondents are not part of the supporting affidavits of the complainant. No grave abuse of
discretion can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which denied Sen.
Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent
"shall have access to the evidence on record," this provision should be construed in relation to Section 4(a) and (b) of
the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states that "theinvestigating officer
shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint." The
"supporting witnesses" are the witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of the affidavits
and all other supporting documents, directing the respondent" tosubmit his counter-affidavit. The affidavits referred to
in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his supporting
witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II that a respondent shall have
"access to the evidence on record" does not stand alone, but should be read in relation to the provisions of Section
4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the "affidavits and other
supporting documents" submitted by "the complainant or supporting witnesses." Thus, a respondent’s "access to
evidence on record" in Section 4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and
supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he respondent shall have
the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy
them at his expense." A respondent’s right to examine refers only to "the evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsman’s
Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the corespondents should be
furnished to a respondent. Justice Velasco’s dissent relies on the ruling in Office of the Ombudsman v. Reyes (Reyes
case),15 an administrative case, in which a different set of rules of procedure and standards apply. Sen. Estrada’s
Petition, in contrast, involves the preliminary investigation stage in a criminal case. Rule III on the Procedure in
Administrative Cases of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes case, while
Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of the Ombudsman applies in Sen.
Estrada’s Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who were both
employees of the Land Transportation Office. Peñaloza submitted his counter-affidavit, as well as those of his two
witnesses. Reyes adopted his counter-affidavit in another case before the Ombudsman as it involved the same parties
and the same incident. None of the parties appeared during the preliminary conference. Peñaloza waived his right to
a formal investigation and was willing to submit the case for resolution based on the evidence on record. Peñaloza
also submitted a counter-affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Peñaloza was found guilty of simple misconduct and penalized
with suspension from office without pay for six months. This Court agreed with the Court of Appeals’ finding that
Reyes’ right to due process was indeed violated. This Court remanded the records of the case to the Ombudsman,
for two reasons: (1) Reyes should not have been meted the penalty of dismissal from the service when the evidence
was not substantial, and (2) there was disregard of Reyes’ right to due process because he was not furnished a copy
of the counter-affidavits of Peñaloza and of Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy
of the counter-affidavits happened in the administrative proceedings on the merits, which resulted in Reyes’ dismissal
from the service. In Sen. Estrada’s Petition, the denial of his Request happened during the preliminary investigation
where the only issue is the existence of probable cause for the purpose of determining whether an information should
be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits of his co-respondents
during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative case and a
criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the cases to
which they are meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond
reasonable doubt is required for conviction;in civil actions and proceedings, preponderance of evidence, as support
for a judgment; and in administrative cases, substantial evidence, as basis for adjudication. In criminal and civil
actions, application of the Rules of Court is called for, with more or less strictness. In administrative proceedings,
however, the technical rules of pleadingand procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the determination of probable cause,
and "probable cause merely implies probability of guilt and should be determined in a summary manner. A preliminary
investigation is not a part of the trial and it is only in a trial where an accused can demand the full exercise of his rights,
such as the right to confront and cross-examine his accusers to establish his innocence."18 Thus, the rights of a
respondent in a preliminary investigation are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is
sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be held for trial. The quantum of evidence
now required in preliminary investigation is such evidence sufficient to "engender a well founded belief" as tothe fact
of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the
occasion for the full and exhaustive display of the parties’ evidence; it is for the presentation of such evidence only as
may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty
thereof. We are in accord with the state prosecutor’s findings in the case at bar that there exists prima facie evidence
of petitioner’s involvement in the commission of the crime, it being sufficiently supported by the evidence presented
and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol are inadmissible as
to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the witnesses
which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the respondent
shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and,
where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe time they were presented to testify during the separate trial
of the case against Galarion and Roxas, he cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The admissibility or inadmissibility of said
testimonies should be ventilated before the trial court during the trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the
conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the accused,
we find no compelling justification for a strict application of the evidentiary rules. In addition, considering that under
Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part of the record
of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the trial
court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does present such
testimonies, petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the
petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol for purposes of
cross-examination.19 (Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the Court of Appeals’
reasoning. This Court quoted from the Court of Appeals’ decision: "x x x [A]dmissions made by Peñaloza in his sworn
statement are binding only on him. Res inter alios act a alteri nocere non debet. The rights of a party cannot be
prejudiced by an act, declaration or omission of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the
admissions of Sen. Estrada’s co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velasco’s
argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720 mentioned the
testimonies of Sen. Estrada’s corespondents like Tuason and Cunanan, their testimonies were merely corroborative
of the testimonies of complainants’ witnesses Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned
in isolation from the testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its finding
of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-CC-13-0397 was judicially
confirmed by the Sandiganbayan, when it examined the evidence, found probable cause, and issued a warrant of
arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that "the due process standards that at the very least should
be considered in the conduct of a preliminary investigation are those that this Court first articulated in Ang Tibay v.
Court of Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay guidelines for administrative cases do not apply
to preliminary investigations in criminal cases. An application of the Ang Tibay guidelines to preliminary investigations
will have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as the
"fundamental and essential requirements of due process in trials and investigations of an administrative
character."22 These requirements are "fundamental and essential" because without these, there isno due process as
mandated by the Constitution. These "fundamental and essential requirements" cannot be taken away by legislation
because theyare part of constitutional due process. These "fundamental and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected
to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely
nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be
"substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in
arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in sucha manner
that the parties to the proceeding can know the various issues involved, and the reasons for the decisions
rendered. The performance of this duty is inseparable from the authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA 24 (GSIS): "what Ang Tibay failed to explicitly
state was, prescinding from the general principles governing due process, the requirement of an impartial
tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may not sit as judge and jury
simultaneously, neither may he review his decision on appeal."25 The GSIS clarification affirms the non applicability of
the Ang Tibay guidelines to preliminary investigations in criminal cases: The investigating officer, which is the role that
the Office of the Ombudsman plays in the investigation and prosecution of government personnel, will never be the
impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in
conducting a preliminary investigation, after conducting its own factfinding investigation, is to determine probable
cause for filing an information, and not to make a final adjudication of the rights and obligations of the parties under
the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer investigates, determines probable
cause, and prosecutes the criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak cases that will
only be dismissed, as well as to spare a person from the travails of a needless prosecution.26 The Ombudsman and
the prosecution service under the control and supervision of the Secretary of the Department of Justice are inherently
the fact-finder, investigator, hearing officer, judge and jury of the respondent in preliminary investigations. Obviously,
this procedure cannot comply with Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with
this procedure because this is merely an Executive function, a part of the law enforcement process leading to trial in
court where the requirements mandated in Ang Tibay, as amplified in GSIS, will apply. This has been the procedure
under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to
preliminary investigations will mean that all past and present preliminary investigations are in gross violation of
constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he filed his Request,
is not yet an accused person, and hence cannot demand the full exercise of the rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence
of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, wealso hold that
the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The
decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the
investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a
clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a
summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand
the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence.
In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable
cause and clarificatory hearing was unnecessary.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the "rights conferred
upon accused persons to participate in preliminary investigations concerning themselves depend upon the provisions
of law by which such rights are specifically secured, rather than upon the phrase ‘due process of law’." This reiterates
Justice Jose P. Laurel’s oft-quoted pronouncement in Hashim v. Boncan29 that "the right to a preliminary investigation
is statutory, not constitutional." In short, the rights of a respondent ina preliminary investigation are merely statutory
rights, not constitutional due process rights. An investigation to determine probable cause for the filing of an
information does not initiate a criminal action so as to trigger into operation Section 14(2), Article III of the
Constitution.30 It is the filing of a complaint or information in court that initiates a criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are granted by the
Constitution; hence, these rights cannot be taken away by merelegislation. On the other hand, as repeatedly reiterated
by this Court, the right to a preliminary investigation is merely a statutory right,32 not part of the "fundamental and
essential requirements" of due process as prescribed in Ang Tibay and amplified in GSIS. Thus, a preliminary
investigation can be taken away by legislation. The constitutional right of an accused to confront the witnesses against
him does not apply in preliminary investigations; nor will the absence of a preliminary investigation be an infringement
of his right to confront the witnesses against him.33 A preliminary investigation may be done away with entirely without
infringing the constitutional right of an accused under the due process clause to a fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidenceneeded in a
preliminary investigation to establish probable cause, or to establish the existence of a prima facie case that would
warrant the prosecution of a case. Ang Tibay refers to "substantial evidence," while the establishment of probable
cause needs "only more than ‘bare suspicion,’ or ‘less than evidence which would justify . . . conviction’." In the United
States, from where we borrowed the concept of probable cause,35 the prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These are not technical;
they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De
Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this "means less than
evidence which would justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a century
ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more than
bare suspicion: Probable cause exists where "the facts and circumstances within their [the officers’] knowledge and
of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy
and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s
protection. Because many situations which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable
men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, non
technical conception affording the best compromise that has been found for accommodating these often opposing
interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens
at the mercy of the officers’ whim or caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is
needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is sufficient ground
to engender a well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial. A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four years, two months and one day
without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a commitment
order, if the accused has already been arrested, shall be issued and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an
offense has just been committed, and he has probable cause to believe based on personal knowledge of facts
or circumstances that the person to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only
upon probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or
probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v. Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than not, a crime has
been committed and there is enough reason to believe that it was committed by the accused. It need not be based on
clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. What is merely
required is "probability of guilt." Its determination, too, does not call for the application of rules or standards of proof
that a judgment of conviction requires after trial on the merits. Thus, in concluding that there is probable cause, it
suffices that it is believed that the act or omission complained of constitutes the very offense charged.
It is also important to stress that the determination of probable cause does not depend on the validity or merits of a
party’s accusation or defense or on the admissibility or veracity of testimonies presented. As previously discussed,
these matters are better ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust Company
v. Gonzales:

Probable cause has been defined as the existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the
crime for which he was prosecuted. x x x. The term does not mean "actual or positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not depend on the validity
or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented" correctly
recognizes the doctrine in the United States that the determination of probable cause can rest partially, or even
entirely, on hearsay evidence, as long as the person making the hearsay statement is credible. In United States v.
Ventresca,38 the United States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the term ‘probable
cause’ . . . means less than evidence which would justify condemnation," Locke v. United States, 7 Cranch 339, 11
U.S. 348, and that a finding of "probable cause" may rest upon evidence which is not legally competent in a criminal
trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S.
160, 173, "There is a large difference between the two things tobe proved (guilt and probable cause), as well as
between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required
to establish them." Thus, hearsay may be the basis for issuance of the warrant "so long as there . . . [is] a substantial
basis for crediting the hearsay." Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that
"an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,"
so long as the magistrate is "informed of some of the underlying circumstances" supporting the affiant’s conclusions
and his belief that any informant involved "whose identity need not be disclosed . . ." was "credible" or his information
"reliable." Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the
hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in
administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial evidence"
which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay
evidence. To require the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the
quantum of evidence required in determining probable cause from evidence of likelihood or probability of guilt to
substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right to
a preliminary investigation. To treat them the same will lead toabsurd and disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the preliminary investigation
level because none of these will satisfy Ang Tibay, as amplified in GSIS. Preliminary investigations are conducted by
prosecutors, who are the same officials who will determine probable cause and prosecute the cases in court. The
prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an
investigating officer outside of the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to
be applied. This will require a new legislation. In the meantime, all pending criminal cases in all courts will have to be
remanded for reinvestigation, to proceed only when a new law is in place. To require Ang Tibay, as amplified in GSIS,
to apply to preliminary investigation will necessarily change the concept of preliminary investigation as we know it
now. Applying the constitutional due process in Ang Tibay, as amplified in GSIS, to preliminary investigation will
necessarily require the application of the rights of an accused in Section 14(2), Article III of the 1987 Constitution. This
means that the respondent can demand an actual hearing and the right to cross-examine the witnesses against him,
rights which are not afforded at present toa respondent in a preliminary investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary investigations but
even to those convicted by final judgment and already serving their sentences. The rule is well-settled that a judicial
decision applies retroactively if it has a beneficial effect on a person convicted by final judgment even if he is already
serving his sentence, provided that he is not a habitual criminal.39 This Court retains its control over a case "until the
full satisfaction of the final judgment conformably with established legal processes."40 Applying Ang Tibay, as amplified
in GSIS, to preliminary investigations will result in thousands of prisoners, convicted by final judgment, being set free
from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal prosecution incourt"
because there is "a pending question regarding the Ombudsman’s grave abuse of its discretion preceding the finding
of a probable cause to indict him." Restated bluntly, Justice Velasco’s dissent would like this Court to conclude that
the mere filing of the present Petition for Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request
should have, by itself, voided all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s Request, the Ombudsman
subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada filed the present Petition, the
Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnishedSen. Estrada with the
counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario Relampagos, Francisco Figura,
Gregoria Buenaventura, and AlexisSevidal, and directed him to comment within a non-extendible period of five days
from receipt of said Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order of the
Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion for Reconsideration
ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen. Estrada and his corespondents with
one count of plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint
Order, the Ombudsman stated that "[t]his Office, in fact, held in abeyance the disposition of motions for reconsideration
in this proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to
formally respond to the above-named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much less a motion for
reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this
Petition for Certiorari before this Court. Sen. Estrada’s resort to a petitionfor certiorari before this Court stands in stark
contrast to his filing of his 7 April 2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution finding
probable cause. The present Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and legal errors. Sen.
Estrada, however, failed to present a compelling reason that the present Petition falls under the exceptions41 to the
general rule that the filing of a motion for reconsideration is required prior to the filing of a petition for certiorari. This
Court has reiterated in numerous decisions that a motion for reconsideration is mandatory before the filing of a petition
for certiorari.42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the present Petition. Justice
Velasco’s dissent insists that "this Court cannot neglect to emphasize that, despite the variance in the quanta of
evidence required, a uniform observance of the singular concept of due process is indispensable in all proceedings."

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join him in his dissent to this
Court’s ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that "[t]he law can no longer help
one who had been given ample opportunity to be heard but who did not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The Ombudsman
found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the course of her official functions
and imposed on her the penalty of reprimand. Petitioner filed a motion for reconsideration of the decision on the
ground that she was not furnished copies of the affidavits of the private respondent’s witnesses. The Ombudsman
subsequently ordered that petitioner be furnished with copies of the counter-affidavits of private respondent’s
witnesses, and that petitioner should "file, within ten (10) days from receipt of this Order, such pleading which she
may deem fit under the circumstances." Petitioner received copies of the affidavits, and simply filed a manifestation
where she maintained that her receipt of the affidavits did not alter the deprivation of her right to due process or cure
the irregularity in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe Ombudsman rendered a
decision against her. We disposed of petitioner’s deprivation of due process claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust all the
administrative remedies available to her before the Ombudsman. This ruling is legallycorrect as exhaustion of
administrative remedies is a requisite for the filing of a petition for certiorari. Other than this legal significance, however,
the ruling necessarily carries the direct and immediate implication that the petitioner has been granted the opportunity
to be heard and has refused to avail of this opportunity; hence, she cannot claim denial of due process. In the words
of the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut the affidavits submitted by
private respondent. . . and had a speedy and adequate administrative remedy but she failed to avail thereof for reasons
only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts,
exhaustion of administrative remedies and due process embody linked and related principles. The "exhaustion"
principle applies when the ruling court or tribunal is not given the opportunity tore-examine its findings and conclusions
because of an available opportunity that a party seeking recourse against the court or the tribunal’s ruling omitted to
take. Under the concept of "due process," on the other hand, a violation occurs when a court or tribunal rules against
a party without giving him orher the opportunity to be heard. Thus, the exhaustion principle is based on the perspective
of the ruling court or tribunal, while due process is considered from the point of view of the litigating party against
whom a ruling was made. The commonality they share is in the same"opportunity" that underlies both. In the context
of the present case, the available opportunity to consider and appreciate the petitioner’s counter-statement offacts
was denied the Ombudsman; hence, the petitioner is barred from seeking recourse at the CA because the ground
she would invoke was not considered at all at the Ombudsman level. At the same time, the petitioner – who had the
same opportunity to rebut the belatedly-furnished affidavits of the private respondent’s witnesses – was not denied
and cannot now claim denial of due process because she did not take advantage of the opportunity opened to her at
the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the private
respondent’s failure to furnish her copies of the affidavits of witnesses) and on questions relating to the appreciation
of the evidence on record. The Ombudsman acted on this motion by issuing its Order of January 17, 2003 belatedly
furnishing her with copies of the private respondent’s witnesses, together with the "directive to file, within ten (10) days
from receipt of this Order, such pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a "Manifestation"
where she took the position that "The order of the Ombudsman dated 17 January 2003 supplying her with the affidavits
of the complainant does not cure the 04 November 2002 order," and on this basis prayed that the Ombudsman’s
decision "be reconsidered and the complaint dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated 27 January 2003
and prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration after finding no
basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this Order the due process
significance of the petitioner’s failure to adequately respond to the belatedly-furnished affidavits. The Ombudsman
said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits, which she claims
she has not received. Furthermore, the respondent has been given the opportunity to present her side relative thereto,
however, she chose not to submit countervailing evidence orargument. The respondent, therefore (sic), cannot claim
denial of due process for purposes of assailing the Decision issued in the present case. On this score, the Supreme
Court held in the case of People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he
had the opportunity to present his side". This becomes all the more important since, as correctly pointed out by the
complainant, the decision issued in the present case is deemed final and unappealable pursuant to Section 27 of
Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite the clear provisions of the law and
the rules, the respondent herein was given the opportunity not normally accorded, to present her side, but she opted
not to do so which is evidently fatal to her cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one, not only for her
failure to exhaust her available administrative remedy, but also on due process grounds. The law can no longer help
one who had been given ample opportunity to be heard but who did not take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen. Estrada’s co-
respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the
affidavits were furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan46 (Tatad) and Duterte v.
Sandiganbayan47 (Duterte) in an attempt to prop up its stand. A careful reading of these cases, however, would show
that they do not stand on all fours with the present case. In Tatad, this Court ruled that "the inordinate delay in
terminating the preliminary investigation and filing the information [by the Tanodbayan] in the present case is violative
of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against
him."48 The Tanod bayan took almost three years to terminate the preliminary investigation, despite Presidential
Decree No. 911’s prescription of a ten-day period for the prosecutor to resolve a case under preliminary investigation.
We ruled similarly in Duterte, where the petitioners were merely asked to comment and were not asked to file counter-
affidavits as isthe proper procedure in a preliminary investigation. Moreover, in Duterte, the Ombudsman took four
years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen. Estrada’s present Petition
for Certiorari is premature for lack of filing of a motion for reconsideration before the Ombudsman. When the
Ombudsman gave Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the given period for
the filing of his comment, Sen. Estrada failed to avail of the opportunity to be heard due to his own fault. Thus, Sen.
Estrada’s failure cannot in any way be construed as violation of due process by the Ombudsman, much less of grave
abuse of discretion. Sen. Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014, Sen. Estrada
stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-13-0313 and
OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint Resolution dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis supplied)

Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the Ombudsman
reconsider and issue a new resolution dismissing the charges against him. However, in this Motion for
Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint Order denying his Request, and that
such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of the Rules of
Court] and principles. A reading of the Joint Resolution will reveal that various pieces of evidence which Senator
Estrada was not furnished with – hence, depriving him of the opportunity to controvert the same – were heavily
considered by the Ombudsman in finding probable cause to charge him with Plunder and with violations of Section
3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings," pursuant to the right of a
respondent "to examine the evidence submitted by the complainant which he may not have been furnished" (Section
3[b], Rule 112 of the Rules of Court), and to "have access to the evidence on record" (Section 4[c], Rule II of the Rules
of Procedure of the Office of the Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s vigilance in
protecting the rights of an accused, the Special Panel of Investigators, in an Order dated 27 March 2014,
unceremoniously denied the request on the ground that "there is no provision under this Office’s Rules of Procedure
which entitles respondent to be furnished all the filings by the other parties x x x x." (Order dated 27 March 2013, p.
3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were eventually made
the bases of the Ombudsman’s finding of probable cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order. Clearly, Sen.
Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the violation of his right to due
process, the same issue he is raising in this petition. In the verification and certification of non-forum shopping attached
to his petition docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the pendency of the
present petition, as well as those before the Sandiganbayan for the determination of the existence of probable cause.
In his petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order
denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause, which he
maintains is without legal or factual basis, but also thatsuch finding of probable cause was premised on evidence not
disclosed tohim, including those subject of his Request to be Furnished with Copiesof Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles in Senate
Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none of which were ever
furnished Sen. Estrada prior to the issuance of the challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28 MARCH
2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS
OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW
AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the filing of Sen.
Estrada’s comment to the voluminous documents comprisingthe documents it furnished Sen. Estrada to a "non-
extendible" period offive (5) days, making it virtually impossible for Sen. Estrada to adequately study the charges
leveled against him and intelligently respond to them. The Joint Order also failed to disclose the existence of other
counter-affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the "sole issue" he
raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014 Joint Order which
denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada did not mention that the 4
June 2014 Joint Order stated that the Ombudsman "held in abeyance the disposition of the motions for reconsideration
in this proceeding in light of its grant to [Sen. Estrada] a period of five days from receipt of the 7 May 2014 [Joint]
Order to formally respond to the abovenamed co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia. 52 To determine
whether a party violated the rule against forum shopping, the most important factor to ask is whether the elements of
litis pendentia are present, or whether a final judgment in one case will amount to res judicatain another.53 Undergirding
the principle of litis pendentia is the theory that a party isnot allowed to vex another more than once regarding the
same subject matter and for the same cause of action. This theory is founded on the public policy that the same matter
should not be the subject of controversy in court more than once in order that possible conflicting judgments may be
avoided, for the sake of the stability in the rights and status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that – in the usual course
and because of its nature and purpose – is not covered by the rule on forum shopping. The exception from the forum
shopping rule, however, is true only where a petition for certiorari is properly or regularly invoked in the usual course;
the exception does not apply when the relief sought, through a petition for certiorari, is still pending with or has as yet
to be decided by the respondent court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for
reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the present case. This conclusion
is supported and strengthened by Section 1, Rule 65 of the Revised Rules of Court which provides that the availability
of a remedy in the ordinary course of law precludes the filing of a petition for certiorari; under this rule, the petition’s
dismissal is the necessary consequence if recourse to Rule 65 is prematurely taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings, or at the very
least, to complicated situations, between the RTC and the Court of Appeals. An extreme possible result is for the
appellate court to confirm that the RTC decision is meritorious, yet the RTC may at the same time reconsider its ruling
and recall its order of dismissal. In this eventuality, the result is the affirmation of the decision that the court a quo has
backtracked on. Other permutations depending on the rulings of the two courts and the timing of these rulings are
possible. In every case, our justice system suffers as this kind of sharp practice opens the system to the possibility of
manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for complications other than
conflict of rulings. Thus, it matters not that ultimately the Court of Appeals may completely agree with the RTC; what
the rule on forum shopping addresses are the possibility and the actuality of its harmful effects on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by the
Ombudsman even as his Motion for Reconsideration raising the very same issue remained pending with the
Ombudsman. This is plain and simple forum shopping, warranting outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and documents, fully
complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II of the
Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of Criminal
Procedure and the Rules of Procedure of the Office of the Ombudsman require the investigating officer to furnish the
respondent with copies of the affidavits of the complainant and affidavits of his supporting witnesses. Neither of these
Rules require the investigating officer to furnish the respondent with copies of the affidavits of his co-respondents.
The right of the respondent is only "to examine the evidence submitted by the complainant," as expressly stated in
Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has unequivocally ruled in Paderanga
that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the respondent shall
only have the right to submit a counter-affidavit, to examine all other evidence submitted by the complainant and,
where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses, to be afforded an
opportunity to be present but without the right to examine or cross-examine." Moreover, Section 4 (a, b and c) of Rule
II of the Ombudsman’s Rule of Procedure, read together, only require the investigating officer to furnish the respondent
with copies of the affidavits of the complainant and his supporting witnesses. There is no law or rule requiring the
1âwphi1

investigating officer to furnish the respondent with copies of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen. Estrada with copies
of the counter-affidavits of his co-respondents whom he specifically named, as well as the counteraffidavits of some
of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in abeyancethe disposition of
the motions for reconsideration because the Ombudsman granted Sen. Estrada five days from receipt of the 7 May
2014 Joint Order to formally respond to the claims made by his co-respondents. The Ombudsman faithfully complied
with the existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the Rules
required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since this is a Petition for
Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not applicable to
preliminary investigations which are creations of statutory law giving rise to mere statutory rights. A law can abolish
preliminary investigations without running afoul with the constitutional requirements of dueprocess as prescribed in
Ang Tibay, as amplified in GSIS. The present procedures for preliminary investigations do not comply, and were never
intended to comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not adjudicate with finality
rights and obligations of parties, while administrative investigations governed by Ang Tibay, as amplified in GSIS, so
adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision against the respondent in the
administrative case.In preliminary investigations, only likelihood or probability of guiltis required. To apply Ang
Tibay,as amplified in GSIS,to preliminary investigations will change the quantum of evidence required to establish
probable cause. The respondent in an administrative case governed by Ang Tibay,as amplified in GSIS,has the right
to an actual hearing and to cross-examine the witnesses against him. In preliminary investigations, the respondent
has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be impartial and
cannot be the fact-finder, investigator, and hearing officer atthe same time. In preliminary investigations, the same
public officer may be the investigator and hearing officer at the same time, or the fact-finder, investigator and hearing
officer may be under the control and supervisionof the same public officer, like the Ombudsman or Secretary of
Justice. This explains why Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now
declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in
preliminary investigations will render all past and present preliminary investigations invalid for violation of constitutional
due process. This will mean remanding for reinvestigation all criminal cases now pending in all courts throughout the
country. No preliminary investigation can proceeduntil a new law designates a public officer, outside of the prosecution
service, to determine probable cause. Moreover, those serving sentences by final judgment would have to be released
from prison because their conviction violated constitutional due process. Sen. Estrada did not file a Motion for
Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request, which is the subject of the
present Petition. He should have filed a Motion for R econsideration, in the same manner that he filed a Motion for
Reconsideration of the 15 May 2014 Order denying his motion to suspend proceedings. The unquestioned rule in this
jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law against the acts of the public respondent.56 The plain, speedy and adequate remedy expressly
provided by law is a Motion for Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada's failure
to file a Motion for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the 28 March
2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for Reconsideration of the 28
March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman and instead
proceeded to file the present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June 2014 and
specifically addressed the issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's present Petition for
Certiorari is not only premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the Petition for
Certiorari in G.R. Nos. 212140-41.

SO ORDERED.
 G.R. No. L-68288 July 11, 1986

DIOSDADO GUZMAN, ULYSSES URBIZTONDO, and ARIEL RAMACULA, petitioners,

vs.
NATIONAL UNIVERSITY and DOMINGO L. JHOCSON in his capacity as President of National
University, respondents.

NARVASA, J.:

Petitioners Diosdado Guzman, Ulysses Urbiztondo and Ariel Ramacula, students of respondent National University,
have come to this Court to seek relief from what they describe as their school's "continued and persistent refusal to
allow them to enrol." In their petition "for extraordinary legal and equitable remedies with prayer for preliminary
mandatory injunction" dated August 7, 1984, they allege:

1) that respondent University's avowed reason for its refusal to re-enroll them in their respective
courses is "the latter's participation in peaceful mass actions within the premises of the University.

2) that this "attitude of the (University) is simply a continuation of its cavalier if not hostile attitude to
the student's exercise of their basic constitutional and human rights already recorded in Rockie C. San
Juan vs. National University, S.C. G.R. No. 65443 (1983) and its utter contempt for the principle of
due process of law to the prejudice of petitioners;" and

3) that "in effect petitioners are subjected to the extreme penalty of expulsion without cause or if there
be any, without being informed of such cause and without being afforded the opportunity to defend
themselves. Berina v. Philippine Maritime Institute (117 SCRA 581 [1983]).

In the comment filed on September 24, 1986 for respondent University and its President pursuant to this Court's
requirement therefor1 , respondents make the claim:

1) that "petitioners' failure to enroll for the first semester of the school year 1984-1985 is due to their own fault and not
because of their allegedexercise of their constitutional and human rights;"

2) that petitioner Urbiztondo, sought to re-enroll only on July 5, 1986 "when the enrollment period was already closed;"

3) that as regards petitioner Guzman, his "academic showing" was "poor", "due to his activities in leading boycotts of
classes"; that when his father was notified of this development sometime in August, 1982, the latter had demanded
that his son "reform or else we will recall him to the province"; that Guzman was one of the petitioners in G.R. No.
65443 entitled "Rockie San Juan, et al. vs. National University, et al.," at the hearing of which on November 23, 1983
this Court had admonished "the students involved (to) take advantage and make the most of the opportunity given to
them to study;" that Guzman "however continued to lead or actively participate in activities within the university
premises, conducted without prior permit from school authorities, that disturbed or disrupted classes therein;" that
moreover, Guzman "is facing criminal charges for malicious mischief before the Metropolitan Trial Court of Manila
(Crim. Case No. 066446) in connection with the destruction of properties of respondent University on September 12,
1983 ", and "is also one of the defendants in Civil Case No. 8320483 of the Regional Trial Court of Manila
entitled 'National University, Inc. vs. Rockie San Juan et al.' for damages arising from destruction of university
properties

4) that as regards petitioner Ramacula, like Guzman "he continued to lead or actively participate, contrary to the spirit
of the Resolution dated November 23, 1983 of this ... Court (in G.R. No. 65443 in which he was also one of the
petitioners) and to university rules and regulations, within university premises but without permit from university
officials in activities that disturbed or disrupted classes;" and

5) that petitioners have "failures in their records, (and) are not of good scholastic standing. "

Respondents close their comment with the following assertions, to wit:

1) By their actuations, petitioners must be deemed to have forfeited their privilege, if any, to seek enrollment in
respondent university. The rights of respondent university, as an institution of higher learning, must also be respected.
It is also beyond comprehension why petitioners, who continually despise and villify respondent university and its
officials and faculty members, should persist in seeking enrollment in an institution that they hate.

2) Under the circumstances, and without regard to legal technicalities, it is not to the best interest of all concerned that
petitioners be allowed to enroll in respondent university.

3) In any event, petitioners' enrollment being on the semestral basis, respondents cannot be compelled to enroll them
after the end of the semester.

On October 2, 1984 this Court issued a resolution reading as follows:

... Acting on the Comment submitted by respondent, the Court Resolved to NOTE the same and to
require a REPLY to such Comment. The Court further Resolved to ISSUE a MANDATORY
INJUNCTION, enjoining respondent to allow the enrolment of petitioners for the coming semester
without prejudice to any disciplinary proceeding to which any or all of them may be subjected with their
right to lawful defense recognized and respected. As regards petitioner Diosdado Guzman, even if it
be a fact that there is a pending criminal charge against him for malicious mischief, the Court
nonetheless is of the opinion that, as above-noted, without prejudice to the continuation of any
disciplinary proceeding against him, that he be allowed to resume his studies in the meanwhile. As
shown in Annex 2 of the petition itself, Mr. Juan P. Guzman, father of said petitioner, is extending full
cooperation with petitioners to assure that whatever protest or grievance petitioner Guzman may have
would be ventilated in a lawful and peaceful manner.

Petitioners' REPLY inter alia—

1) denied that Urbiztondo attempted to enroll only on July 5, 1984 (when enrollment was already closed), it being
alleged that "while he did try to enroll that day, he also attempted to do so several times before that date, all to no
avail, because respondents ... persistently refused to allow him to do so" respondents' ostensible reason being that
Urbiztondo (had) participated in mass actions ... within the school premises," although there were no existing
disciplinary charge against petitioner Urbiztondo" at the time;

2) asserted that "neither the text nor the context of the resolution 2 justifies the conclusion that "petitioners' right to exercise their
constitutional freedoms" had thereby been restricted or limited; and

3) alleged that "the holding of activities (mass action) in the school premises without the permission of the school ...
can be explained by the fact that the respondents persistently refused to issue such permit repeatedly sought by the
students. "

On November 23, 1984, this Court promulgated another resolution, this time reading as follows:

... The Court, after considering the pleadings filed and deliberating on the issues raised in the petition
for extraordinary legal and equitable remedies with prayer for preliminary mandatory injunction as well
as the respondents' comment on the petition and the reply of counsel for petitioners to the respondents'
comment, Resolved to (a) give DUE COURSE to the petition; (b) consider the respondents' comment
as ANSWER to the petition; and (c) require the parties to file their respective MEMORANDA within
twenty (20) days from notice. ... .

Immediately apparent from a reading of respondents' comment and memorandum is the fact that they had never
conducted proceedings of any sort to determine whether or not petitioners-students had indeed led or participated "in
activities within the university premises, conducted without prior permit from school authorities, that disturbed or
disrupted classes therein" 3 or perpetrated acts of "vandalism, coercion and intimidation, slander, noise barrage and other acts showing disdain for and
defiance of University authority." 4 Parenthetically, the pendency of a civil case for damages and a criminal case for malicious mischief against petitioner Guzman,
cannot, without more, furnish sufficient warrant for his expulsion or debarment from re-enrollment. Also apparent is the omission of respondents to cite this Court to
any duly published rule of theirs by which students may be expelled or refused re-enrollment for poor scholastic standing.

Under the Education Act of 1982, 5 the petitioners, as students, have the right among others "to freely choose their field of study subject to existing
curricula and to continue their course therein up to graduation, except in case of academic deficiency, or violation of disciplinary regulations." 6 Petitioners were being
denied this right, or being disciplined, without due process, in violation of the admonition in the Manual of Regulations for Private Schools 7 that "(n)o penalty shall
be imposed upon any student except for cause as defined in ... (the) Manual and/or in the school rules and regulations as duly promulgated and only after due
investigation shall have been conducted." 8 This Court is therefore constrained, as in Berina v. Philippine Maritime Institute, 9 to declare illegal this act of respondents
of imposing sanctions on students without due investigation.

Educational institutions of course have the power to "adopt and enforce such rules as may be deemed expedient for
... (its) government, ... (this being)" incident to the very object of incorporation, and indispensable to the successful
management of the college." 10 The rules may include those governing student discipline. Indeed, the maintenance of "good school discipline" is
11
a duty specifically enjoined on "every private school" by the Manual of Regulations for Private Schools; and in this connection, the Manual further
provides that-

... The school rules governing discipline and the corresponding sanctions therefor must be clearly
specified and defined in writing and made known to the students and/or their parents or guardians.
Schools shall have the authority and prerogative to promulgate such rules and regulations as they
may deem necessary from time to time effective as of the date of their promulgation unless otherwise
specified. 12

But, to repeat, the imposition of disciplinary sanctions requires observance of procedural due process. And it bears
stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar
to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may
be summary; and cross-examination is not, 'contrary to petitioners' view, an essential part thereof. There are withal
minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the
students must be informed in writing of the nature and cause of any accusation against them; (2) they shag have the
right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the
evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must
be duly considered by the investigating committee or official designated by the school authorities to hear and decide
the case.

WHEREFORE, the petition is granted and the respondents are directed to allow the petitioners to re-enroll or otherwise
continue with their respective courses, without prejudice to any disciplinary proceedings to which any or all of them
may be subjected in accordance with the standards herein set forth.

SO ORDERED.

G.R. No. 89317 May 20, 1990

ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON, LOURDES
BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO, GIOVANI PALMA, JOSELITO
VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners,
vs.
HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court, Br. 38, Daet,
Camarines Norte; and MABINI COLLEGES, INC., represented by its president ROMULO ADEVA and by the
chairman of the Board of Trustees, JUSTO LUKBAN, respondents.

CORTES, J.:

Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v. Philippine School of Business Administration, et al., G.R. No.
76353, May 2, 1988, 161 SCRA 7, to the effect that a college student, once admitted by the school, is considered enrolled only for one semester and, hence, may
be refused readmission after the semester is over, as the contract between the student and the school is deemed terminated.

Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not allowed to re-
enroll by the school for the academic year 1988-1989 for leading or participating in student mass actions against the
school in the preceding semester. The subject of the protests is not, however, made clear in the pleadings.

Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school, but the trial court
dismissed the petition in an order dated August 8, 1988; the dispositive portion of which reads:

WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz vs. PSBA is exactly on
the point at issue in this case but the authority of the school regarding admission of students, save as
 a matter of compassionate equity — when any of the petitioners would, at the least, qualify for re-
enrollment, this petition is hereby DISMISSED.

SO ORDERED. [Rollo, p. 12-A.]

A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in this wise:

Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and that really there
must be a better way of treating students and teachers than the manner ruled (not suggested) by the
Supreme Court, the Termination of Contract at the end of the semester, that is.

But applicable rule in the case is that enunciated by the Supreme Court in the case of Sophia Alcuaz,
et al. vs. Philippine School of Business Administration, Quezon City Branch (PSBA), et al., G.R. No.
76353, May 2, 1988; that of the termination at the end of the semester, reason for the critical comments
of Joaquin G. Bernas and Doods Santos, who both do not agree with the ruling.

Petitioners' claim of lack of due process cannot prosper in view of their failure to specifically deny
respondent's affirmative defenses that "they were given all the chances to air their grievances on
February 9, 10, 16, and 18, 1988, and also on February 22, 1988 during which they were represented
by Atty. Jose L. Lapak" and that on February 22, 1988, the date of the resumption of classes at Mabini
College, petitioners continued their rally picketing, even though without any renewal permit, physically
coercing students not to attend their classes, thereby disrupting the scheduled classes and depriving
a great majority of students of their right to be present in their classes.

Against this backdrop, it must be noted that the petitioners waived their privilege to be admitted for re-
enrollment with respondent college when they adopted, signed, and used its enrollment form for the
first semester of school year 1988-89. Said form specifically states that:

The Mabini College reserves the right to deny admission of students whose
scholarship and attendance are unsatisfactory and to require withdrawal of students
whose conduct discredits the institution and/or whose activities unduly disrupts or
interfere with the efficient operation of the college. Students, therefore, are required to
behave in accord with the Mabini College code of conduct and discipline.

In addition, for the same semester, petitioners duly signed pledges which among others uniformly
reads:

In consideration of my admission to the Mabini College and of my privileges as student

of this institution, I hereby pledge/ promise under oath to abide and comply with all the
rules and regulations laid down by competent authorities in the College Department or
School in which I am enrolled. Specifically:

xxx xxx xxx

3. I will respect my Alma Matter the Mabini College, which I represent and see to it that
I conduct myself in such a manner that the college wig not be put to a bad light;

xxx xxx xxx

9. I will not release false or unauthorized announcement which tend to cause confusion
or disrupt the normal appreciation of the college.

Moreover, a clear legal right must first be established for a petition for mandamus to prosper (Sec. 3,
Rule 65). It being a mere privilege and not a legal right for a student to be enrolled or reenrolled,
respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the
academic freedom enjoyed by the school in accordance with the Supreme Court rulings in the cases
 of Garcia vs. Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975) and Tangonon
vs. Pano, et al. (L-45157, June 27, 1985).

WHEREFORE, premises and jurisprudence considered, and for lack of merit, the motion for
reconsideration of the order of this Court dated August 8, 1988 is hereby DENIED.

SO ORDERED. [Rollo pp. 15-16.]

Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory injunction.

The case was originally assigned to the Second Division of the Court, which resolved on April 10, 1989 to refer the
case to the Court of Appeals for proper determination and disposition. The Court of Appeals ordered respondents to
comment on the petition and set the application for issuance of a writ of preliminary mandatory injunction for hearing.
After considering the comment and hearing the injunction application, the Court of Appeals resolved on May 22, 1989
to certify the case back to the Supreme Court considering that only pure questions of law were raised.

The case was assigned to the Third Division of the Court, which then transferred it to the Court en banc on August
21, 1989 considering that the issues raised are jurisdictional. On September 14, 1989, the Court en banc accepted
the case and required respondents to comment.

Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As reply, they filed a
pleading entitled "Counter-Comment," to which respondents filed a rejoinder entitled "Reply to Counter-Comment To
this petitioners filed a "Rejoinder to Reply."

The issues having been joined, the case was deemed submitted.

At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz:

It is beyond dispute that a student once admitted by the school is considered enrolled for one semester.
It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student
registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided
in the Manual, that the "written contracts" required for college teachers are for "one semester." It is
thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract
either with the students or with the intervening teachers. Such being the case, the charge of denial of
due process is untenable. It is a time-honored principle that contracts are respected as the law
between the contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456,
February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals,
100 SCRA 197). The contract having been terminated, there is no more contract to speak of. The
school cannot be compelled to enter into another contract with said students and teachers. "The
courts, be they the original trial court or the appellate court, have no power to make contracts for the
parties.' (Henson vs. Intermediate Appellate Court, et al., supra). [At 161 SCRA 17-18; Emphasis
supplied.]

In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were barred from re-
enrolling after they led mass assemblies and put up barricades, but it added that "in the light of compassionate equity,
students who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year
when this petition was filed, should be allowed to re-enroll and to graduate in due time." [At 161 SCRA 22.] Mr. Justice
Sarmiento dissented from the majority opinion.

A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not move for
reconsideration. The Court en banc, to which the case had been transferred, denied the motion for reconsideration in
a Resolution dated September 29, 1989, but added as an obiter dictum:

In conclusion, We wish to reiterate that while We value the right of students to complete their education
in the school or university of their choice, and while We fully respect their right to resort to rallies and
demonstrations for the redress of their grievances and as part of their freedom of speech and their
right to assemble, still such rallies, demonstrations, and assemblies must always be conducted
 peacefully, and without resort to intimidation, coercion, or violence. Academic freedom in all its forms,
demands the full display of discipline. To hold otherwise would be to subvert freedom into degenerate
license.

The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the decision provoked
several dissents on that issue. Although seven (7) members of the Court * disagreed with the Second Division's
dismissal of the students petition, a definitive ruling on the issue could not have been made because no timely motion
for reconsideration was filed by the students. (As stated above, the motion for reconsideration was filed by the
dismissed teachers.)

Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools to bar the
readmission or re-enrollment of students on the ground of termination of contract, shall be made in this case where
the issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5].

Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school refusing
readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to readmit or re-enroll
petitioners was decided upon and implemented by school authorities as a reaction to student mass actions directed
against the school. Petitioners are students of respondent school who, after leading and participating in student
protests, were denied readmission or re-enrollment for the next semester. This is a case that focuses on the right to
speech and assembly as exercised by students vis-a-vis the right of school officials to discipline them.

Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August 8, 1988; Rollo,
pp. 1212-A], he actually viewed the issue as a conflict between students' rights and the school's power to discipline
them, to wit:

Students should not be denied their constitutional and statutory right to education, and there is such
denial when students are expelled or barred from enrollment for the exercise of their right to free
speech and peaceable assembly and/or subjected to disciplinary action without abiding with the
requirements of due process. Also, it is understandable for student leaders to let loose extremely
critical and, at times, vitriolic language against school authorities during a student rally.

But the right of students is no license and not without limit . . . [Order of February 24, 1989; Rollo, p.
13.]

1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate.

Central to the democratic tradition which we cherish is the recognition and protection of the rights of free speech and
assembly. Thus, our Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances. [Art.
III.]

This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973 Constitution, as
amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the Philippine Autonomy Act (Jones
Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15, para. 13]. Thus, as early as 1907, the Court in People
v. Apurado, 7 Phil. 422, upheld the right to speech and assembly to overturn a conviction for sedition. It said:

Section 5 of the Act No. 292 is as follows:

All persons who rise publicly and tumultuously in order to attain by force or outside of
legal methods any of the following objects are guilty of sedition:

xxx xxx xxx

 2. To prevent the Insular Government, or any provincial or municipal government or
any public official, from freely exercising its or his duties or the due execution of any
judicial or administrative order.

But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the people
peaceably to assemble and petition the Government for redress of grievances" guaranteed by the
express provisions of section 5 of "the Philippine Bill."

xxx xxx xxx

It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct
by individual members of a crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble and to petition for redress of
grievances would become a delusion and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to attain did not happen
to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion
must be exercise in drawing the line between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising. [At pp. 424, 426.]

That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is similarly available
to students is well-settled in our jurisdiction. In the leading case of Malabanan v. Ramento, G.R. No. 62270, May 21,
1984, 129 SCRA 359, the Court, speaking through Mr. Chief Justice Fernando in an en banc decision, declared:

xxx xxx xxx

4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so.
They enjoy like the rest of the citizens the freedom to express their views and communicate their
thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow
from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate." While therefore, the
authority of educational institutions over the conduct of students must be recognized, it cannot go so
far as to be violative of constitutional safeguards. [At pp. 367-368.]

The facts in Malabanan are only too familiar in the genre of cases involving student mass actions:

. . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio Araneta]
University. They sought and were granted by the school authorities a permit to hold a meeting from
8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other students, they
held a general assembly at the Veterinary Medicine and Animal Science (VMAS) the place indicated
in such permit, not in the basketball court as therein stated but at the respond floor lobby. At such
gathering they manifested in vehement and vigorous language their opposition to the proposed merger
of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they
marched toward the Life Science building and continued their rally. It was outside the area covered by
their permit. They continued their demonstration, giving utterance to language severely critical of the
University authorities and using megaphones in the process. There was, as a result, disturbance of
the classes being held. Also, the non-academic employees, within hearing distance, stopped their
work because of the noise created. They were asked to explain on the same day why they should not
be held liable for holding an illegal assembly. Then on September 9, 1982, they were informed through
a memorandum that they were under preventive suspension for their failure to explain the holding of
an illegal assembly in front of the Life Science Building. The validity thereof was challenged by
petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages
against private respondents and before the Ministry of Education, Culture, and Sports. On October 20,
 1982, respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the
charge of having violated par. 146(c) of the Manual for Private Schools more specifically their holding
of an illegal assembly which was characterized by the violation of the permit granted resulting in the
disturbance of classes and oral defamation. The penalty was suspension for one academic year. . . .
[At pp. 363-364.]

The Court found the penalty imposed on the students too severe and reduced it to a one-week suspension.

The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the Court.

In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706, the Court
reiterated that the exercise of the freedom of assembly could not be a basis for barring students from enrolling. It
enjoined the school and its officials from acts of surveillance, blacklisting, suspension and refusal to re-enroll. But the
Court allowed the non-enrollment of students who clearly incurred marked academic deficiency, with the
following caveat:

xxx xxx xxx

4. The academic freedom enjoyed by ''institutions of higher learning" includes the right to set academic
standards to determine under what circumstances failing grades suffice for the expulsion of students.
Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to
discriminate against those students who exercise their constitutional rights to peaceable assembly and
free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their
right to the equal protection clause being disregarded. [At p. 711.]

In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94, a case arising
from almost the same facts as those in Malabanan, the Court rejected "the infliction of the highly- disproportionate
penalty of denial of enrollment and the consequent failure of senior students to graduate, if in the exercise of the
cognate rights of free speech and peaceable assembly, improper conduct could be attributed to them. [At p. 98].

In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school was directed to
allow the petitioning students to re-enroll or otherwise continue with their respective courses, without prejudice to any
disciplinary proceedings that may be conducted in connection with their participation in the protests that led to the
stoppage of classes.

2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School.

While the highest regard must be afforded the exercise of the rights to free speech and assembly, this should not be
taken to mean that school authorities are virtually powerless to discipline students. This was made clear by the Court
in Malabanan, when it echoed Tinker v. Des Moines Community School District, 393 US 503, 514: "But conduct by
the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior —
materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech."

Thus, in Malabanan, the Court said:

xxx xxx xxx

8. It does not follow, however, that petitioners can be totally absolved for the events that transpired.
Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than
that specified, in the second floor lobby, rather than the basketball court, of the (VMAS) building of the
University. Moreover, it was continued longer than the period allowed. According to the decision of
respondent Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m."
Private respondents could thus, take disciplinary action. . . . [ At pp. 370-371].

But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural due process.
Thus:
 . . . There are withal minimum standards which must be met to satisfy the demands of procedural due
process; and these are, that (1) the students must be informed in writing of the nature and cause of
any accusation against them; (2) they shall have the right to answer the charges against them, with
the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they
shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly
considered by the investigating committee or official designated by the school authorities to hear and
decide the case. [At pp. 706-707].

Moreover, the penalty imposed must be proportionate to the offense committed. As stated in Malabanan, "[i]f the
concept of proportionality between the offense committed and sanction imposed is not followed, an element of
arbitrariness intrudes." [At p. 371].

3. Circumventing Established Doctrine.

Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not only because of
political events that unfurled but also because of the constantly raging controversy over increases in tuition fees. But
the over-eager hands of some school authorities were not effectively tied down by the ruling in Malabanan. Instead of
suspending or expelling student leaders who fell into disfavor with school authorities, a new variation of the same
stratagem was adopted by the latter: refusing the students readmission or re-enrollment on grounds not related to,
their alleged misconduct of "illegal assembly" in leading or participating in student mass actions directed against the
school. Thus, the spate of expulsions or exclusions due to "academic deficiency."

4. The Nature of the Contract Between a School and its Student.

The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be repeatedly
emphasized that the contract between the school and the student is not an ordinary contract. It is imbued with public
interest, considering the high priority given by the Constitution to education and the grant to the State of supervisory
and regulatory powers over all educational institutions [See Art. XIV, secs. 1-2, 4(1)].

Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of Regulations for Private
Schools, which provides that "[w]hen a student registers in a school, it is understood that he is enrolling . . . for the
entire semester for collegiate courses," which the Court in Alcuaz construed as authority for schools to refuse
enrollment to a student on the ground that his contract, which has a term of one semester, has already expired.

The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely clarifies that a
college student enrolls for the entire semester. It serves to protect schools wherein tuition fees are collected and paid
on an installment basis, i.e. collection and payment of the downpayment upon enrollment and the balance before
examinations. Thus, even if a student does not complete the semester for which he was enrolled, but has stayed on
for more than two weeks, he may be required to pay his tuition fees for the whole semester before he is given his
credentials for transfer. This is the import of Paragraph 137, subsumed under Section VII on Tuition and Other Fees,
which in its totality provides:

137. When a student registers in a school, it is understood that he is enrolling for the entire school
year for elementary and secondary courses, and for the entire semester for collegiate courses. A
student who transfers or otherwise withdraws, in writing, within two weeks after the beginning of
classes and who has already paid the pertinent tuition and other school fees in full or for any length of
time longer than one month may be charged ten per cent of the total amount due for the term if he
withdraws within the first week of classes, or twenty per cent if within the second week of classes,
regardless of whether or not he has actually attended classes. The student may be charged all the
school fees in full if he withdraws anytime after the second week of classes. However, if the transfer
or withdrawal is due to a justifiable reason, the student shall be charged the pertinent fees only up to
and including the last month of attendance.

Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for only one semester,
and that after that semester is over his re-enrollment is dependent solely on the sound discretion of the school. On
the contrary, the Manual recognizes the right of the student to be enrolled in his course for the entire period he is
expected to complete it. Thus, Paragraph 107 states:
 Every student has the right to enrol in any school, college or university upon meeting its specific
requirement and reasonable regulation: Provided, that except in the case of academic delinquency
and violation of disciplinary regulation, the student is presumed to be qualified for enrolment for the
entire period he is expected to complete his course without prejudice to his right to transfer.

This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act of 1982." Section
9 of this act provides:

Sec. 9. Rights of Students in School. — In addition to other rights, and subject to the limitations
prescribed by law and regulations, students and pupils in all schools shall enjoy the following rights:

xxx xxx xxx

2. The right to freely choose their field of study subject to existing curricula and to
continue their course therein up to graduation, except in cases of academic deficiency,
or violation of disciplinary regulations.

xxx xxx xxx

5. Academic Freedom Not a Ground for Denying Students' Rights.

Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is free to admit or
not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school" [Rollo, p. 16]. To
support this conclusion, he cited the cases of Garcia v. The Faculty Admission Committee, Loyola School of Theology,
G.R. No. L-40779, November 28, 1975, 68 SCRA 277, and Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137
SCRA 245, where the Court emphasized the institutions' discretion on the admission and enrollment of students as a
major component of the academic freedom guaranteed to institutions of higher learning.

These cases involve different facts and issues. In Garcia, the issue was whether a female lay student has a clear legal
right to compel a seminary for the priesthood to admit her for theological studies leading to a degree. In Tangonan,
the issue was whether a nursing student, who was admitted on probation and who has failed in her nursing subjects,
may compel her school to readmit her for enrollment.

Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of an institution of
higher learning to set academic standards cannot be utilized to discriminate against students who exercise their
constitutional rights to speech and assembly, for otherwise there win be a violation of their right to equal protection
[At p. 711]

6. Capitol Medical Center and Licup.

In support of the action taken by respondent judge, private respondents cite the recent cases of Capitol Medical
Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v. University of San Carlos, G.R. No.
85839, October 19, 1989, both decided by the First Division of the Court.

We find the issues raised and resolved in these two decisions dissimilar from the issues in the present case.

In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the school because
of problems emanating from a labor dispute between the school and its faculty. The Court ruled that the students had
no clear legal right to demand the reopening of the school.

On the other hand, in Licup the issue resolved was whether or not the students were afforded procedural due process
before disciplinary action was taken against them. Thus, the Court stated:

The Court finds no cogent basis for the protestations of petitioners that they were deprived of due
process of law and that the investigation conducted was far from impartial and fair. On the contrary,
what appear from the record is that the charges against petitioners were adequately established in an
appropriate investigation. The imputation of bias and partiality is not supported by the record. . . .
Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it, to wit:

While it is true that the students are entitled to the right to pursue their education, the USC as an
educational institution is also entitled to pursue its academic freedom and in the process has the
concommitant right to see to it that this freedom is not jeopardized.

True, an institution of learning has a contractual obligation to afford its students a fair opportunity to
complete the course they seek to pursue. However, when a student commits a serious breach of
discipline or fails to maintain the required academic standard, he forfeits his contractual right; and the
court should not review the discretion of university authorities. (Emphasis supplied.)

7. The Instant Case.

To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting from their answer
filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have incurred failing grades, to wit:

a) Ariel Non has not only failed in four (4) subjects but also failed to cause the submission of Form
137 which is a pre-requisite to his re- enrollment and to his continuing as a student of Mabini;

b) Rex Magana not only has failed in one (1) subject but also has incomplete grades in four (4) subjects
as well as no grades in two (2) subjects;

c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades;

d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22. He is already
enrolled at Ago Foundation;

e) Joselito Villalon has incomplete grades in nine (9) subjects;

f) Luis Santos has failed in one (1) subject;

g) George Dayaon has failed in four (4) subjects and has to remove the incomplete grade in one (1)
subject;

h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in five (5) more
objects and has no grade in one (1) subject. [Rollo, p. 79.]

Petitioners have not denied this, but have countered this allegation as follows:

xxx xxx xxx

(11) Petitioners were and are prepared to show, among others, that:

a) Three of the 13 of them were graduating. (Admitted in the Answer.)

b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer indicates only 8
of the 13 as with deficiencies.)

c) Their breach of discipline, if any, was not serious.

d) The improper conduct attributed to them was during the exercise of the cognate rights of free speech
and peaceable assembly, particularly a February 1988 student rally. (The crux of the matter, as shown
even in the Answer.)

e) There was no due investigation that could serve as basis for disciplinary action. (In effect, admitted
in the Answer; even Alcuaz required due process.)
 f) Respondents admit students with worse deficiencies — a clear case of discrimination against
petitioners for their role in the student rally. (An equal protection question.)

g) Respondent school is their choice institution near their places of residence which they can afford to
pay for tertiary education, of which they have already lost one-and-a-half school-years — in itself
punishment enough. [Rollo, p. 86].

Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes Banares, Bartolome
Ibasco, Sonny Moreno and Giovani Palma, were refused re-enrollment without just cause and, hence, should be
allowed to re-enroll.

On the other hand, it does not appear that the petitioners were afforded due process, in the manner expressed
in Guzman, before they were refused re-enrollment. In fact, it would appear from the pleadings that the decision to
refuse them re-enrollment because of failing grades was a mere afterthought. It is not denied that what incurred the
ire of the school authorities was the student mass actions conducted in February 1988 and which were led and/or
participated in by petitioners. Certainly, excluding students because of failing grades when the cause for the action
taken against them undeniably related to possible breaches of discipline not only is a denial of due process but also
constitutes a violation of the basic tenets of fair play.

Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely, Rex Magana,
Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be considered marked academic
deficiency within the context of the Court's decision in Villar.

Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon, George (Jorge)
Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether the failures were incurred in only
one semester or through the course of several semesters of study in the school. Neither are the academic standards
of respondent school, from which we can gauge whether or not these students are academically deficient, alleged by
respondents. Thus, while the prerogative of schools to set academic standards is recognized, we cannot affirm
respondent school's action as to petitioners Non, Villalon, Dayaon and Torres because of insufficient information.

With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation, such fact alone, if
true, will not bar him from seeking readmission in respondent school.

However, these should not be taken to mean that no disciplinary action could have been taken against petitioners for
breach of discipline if the facts had so warranted. In line with the Court's ruling in Malabanan, petitioners could have
been subjected to disciplinary proceedings in connection with the February 1988 mass actions. But the penalty that
could have been imposed must be commensurate to the offense committed and, as set forth in Guzman, it must be
imposed only after the requirements of procedural due process have been complied with. This is explicit from the
Manual of Regulations for Private Schools, which provides in Paragraph 145 that "[n]o penalty shall be imposed upon
any student, except for cause as defined in this Manual and/or in the school's rules and regulations duly promulgated
and only after due investigation shall have been conducted."

But this matter of disciplinary proceedings and the imposition of administrative sanctions have become moot and
academic. Petitioners, who have been refused readmission or re-enrollment and who have been effectively excluded
from respondent school for four (4) semesters, have already been more than sufficiently penalized for any breach of
discipline they might have committed when they led and participated in the mass actions that, according to
respondents, resulted in the disruption of classes. To still subject them to disciplinary proceedings would serve no
useful purpose and would only further aggravate the strained relations between petitioners and the officials of
respondent school which necessarily resulted from the heated legal battle here, in the Court of Appeals and before
the trial court.

WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and February 24,
1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit and to allow the re- enrollment of
petitioners, if they are still so minded, without prejudice to its taking the appropriate action as to petitioners Ariel Non,
Joselito Villalon, George (Jorge) Dayaon and Daniel Torres, if it is shown by their records (Form 137) that they have
failed to satisfy the school's prescribed academic standards.

SO ORDERED.
 G.R. No. 99327 May 27, 1993

ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN BERNAS, S. J., DEAN CYNTHIA ROXAS-DEL
CASTILLO, JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO ESCOLIN, FISCAL MIGUEL ALBAR,
ATTYS. MARCOS HERRAS, FERDINAND CASIS, JOSE CLARO TESORO, RAMON CAGUIOA, and RAMON
ERENETA. petitioners,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-Makati, Br. 134, ZOSIMO MENDOZA, JR.
ERNEST MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO SABBAN, DALMACIO LIM JR., MANUEL
ESCONA and JUDE FERNANDEZ, respondents.

ROMERO, J.:

In 1975, the Court was confronted with a mandamus proceeding to compel the Faculty Admission Committee of the
Loyola School of Theology, a religious seminary which has a working arrangement with the Ateneo de Manila
University regarding accreditation of common students, to allow petitioner who had taken some courses therein for
credit during summer, to continue her studies.1 Squarely meeting the issue, we dismissed the petition on the ground
that students in the position of petitioner possess, not a right, but a privilege, to be admitted to the institution. Not
having satisfied the prime and indispensable requisite of a mandamus proceeding since there is no duty, much less
a clear duty, on the part of the respondent to admit the petitioner, the petition did not prosper.

In support of its decision, the Court invoked academic freedom of institutions of higher learning, as recognized by the
Constitution, the concept encompassing the right of a school to choose its students.

Eighteen (18) years later, the right of a University to refuse admittance to its students, this time in Ateneo de Manila
University proper, is again challenged.

Whereas, in the Garcia case referred to in the opening paragraph, the individual concerned was not a regular student,
the respondents in the case at bar, having been previously enrolled in the University, seek re-admission. Moreover,
in the earlier case, the petitioner was refused admittance, not on such considerations as personality traits and
character orientation, or even inability to meet the institution's academic or intellectual standards, but because of her
behavior in the classroom. The school pointedly informed her that ". . . it would seem to be in your best interest to
work with a Faculty that is more compatible with your orientations."

On the other hand, students who are now being refused admission into petitioner University have been found guilty
of violating Rule No. 3 of the Ateneo Law School Rules on Discipline which prohibits participation in hazing activities.
The case attracted much publicity due to the death of one of the neophytes and serious physical injuries inflicted on
another.

Herein lies an opportunity for the Court to add another dimension to the concept of academic freedom of institutions
of higher learning, this time a case fraught with social and emotional overtones.

The facts which gave rise to this case which is far from novel, are as follows:

As a requisite to membership, the Aquila Legis, a fraternity organized in the Ateneo Law School, held its initiation rites
on February 8, 9 and 10, 1991, for students interested in joining its ranks. As a result of such initiation rites, Leonardo
"Lennie" H. Villa, a first year student of petitioner university, died of serious physical injuries at Chinese General
Hospital on February 10, 1991. He was not the lone victim, though, for another freshman by the name of Bienvenido
Marquez was also hospitalized at the Capitol Medical Center for acute renal failure occasioned by the serious physical
injuries inflicted upon him on the same occasion.

In a notice dated February 11, 1991, petitioner Dean Cynthia del Castillo created a Joint Administration-Faculty-
Student Investigating Committee2 which was tasked to investigate and submit a report within 72 hours on the
circumstances surrounding the death of Lennie Villa. Said notice also required respondent students to submit their
written statements within twenty-four (24) hours from receipt. Although respondent students received a copy of the
written notice, they failed to file a reply. In the meantime, they were placed on preventive suspension. 3 Through their
respective counsels, they requested copies of the charges and pertinent documents or affidavits.
In a notice dated February 14, 1991, the Joint Administration-Faculty-Student Investigating Committee, after receiving
the written statements and hearing the testimonies of several witness, found a prima facie case against respondent
students for violation of Rule 3 of the Law School Catalogue entitled "Discipline."4

Respondent students were then required to file their written answers to the formal charge on or before February 18,
1991; otherwise, they would be deemed to have waived their right to present their defenses.

On February 20, 1991, petitioner Dean created a Disciplinary Board composed of petitioners Judge Ruperto Kapunan,
Justice Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and Atty. Ferdinand Casis, to hear the charges
against respondent students.

In a letter dated February 20, 1991, respondent students were informed that they had violated Rule No. 3 of the Rules
on Discipline contained in the Law School Catalogue. Said letter also states: "The complaint/charge against you arose
from initiations held on February 8-10, 1991. The evidence against you consist of testimonies of students, showing
your participation in acts prohibited by the School regulations." Finally, it ordered respondent students to file their
written answers to the above charge on or before February 22 1991, otherwise they would be deemed to have waived
their defenses.5

In a motion dated February 21, 1991, respondent students, through counsel, requested that the investigation against
them be held in abeyance, pending action on their request for copies of the evidence against them.6

Respondent students were then directed by the Board to appear before it at a hearing on February 28, 1991 to clarify
their answer with regard to the charges filed by the investigating committee for violation of Rule No. 3. However, in a
letter to a petitioners dated February 27, 1991, counsel for respondent students moved to postpone the hearing from
February 28, 1991 to March 1, 1991.7

Subsequently, respondent students were directed to appear on March 2, 1991 for clarificatory questions.8 They were
also informed that:

a) The proceedings will be summary in nature in accordance with the rules laid down in the case
of Guzman vs. National University;9

b) Petitioners have no right to cross-examine the affiants-neophytes;

c) Hazing which is not defined in the School catalogue shall be defined in accordance with the
proposed bill of Sen. Jose Lina, Senate Bill No. 3815;

d) The Board will take into consideration the degree of participation of the petitioners in the alleged
hazing incident in imposing the penalty;

e) The Decision of the Board shall be appealable to the President of the University, i. e., Respondent
Joaquin Bernas S. J.

On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in cases where the Disciplinary Board is not prepared
to impose the penalty of dismissal, I would prefer that the Board leave the decision on the penalty to the Administration
so that this case be decided not just on the Law School level but also on the University level."10

In a resolution dated March 9, 1991, the Board found respondent students guilty of violating Rule No. 3 of the Ateneo
Law School Rules on Discipline which prohibits participation in hazing activities. The Board found that respondent
students acted as master auxiliaries or "auxies" during the initiation rites of Aquila Legis, and exercised the "auxies
privilege," which allows them to participate in the physical hazing. Although respondent students claim that they were
there to assist and attend to the needs of the neophytes, actually they were assigned a definite supportive role to play
in the organized activity. Their guilt was heightened by the fact that they made no effort to prevent the infliction of
further physical punishment on the neophytes under their care. The Board considered respondent students part and
parcel of the integral process of hazing. In conclusion, the Board pronounced respondents guilty of hazing, either by
active participation or through acquiescence. However, in view of the lack of unanimity among the members of the
Board on the penalty of dismissal, the Board left the imposition of the penalty to the University
Administration.11 Petitioner Dean del Castillo waived her prerogative to review the decision of the Board and left to the
President of the University the decision of whether to expel respondents or not.

Consequently, in a resolution dated March 10, 1991, petitioner Fr. Joaquin G. Bernas, as President of the Ateneo de
Manila University, accepted the factual findings of the Board, thus: "that as Master Auxiliaries they exercised the
'auxie's privilege;' that even assuming they did not lay hands on the neophytes," respondents students are still guilty
in accordance with the principle that "where two or more persons act together in the commission of a crime, whether
they act through the physical volition of one or of all, proceeding severally or collectively, each individual whose will
contributes to the wrongdoing is responsible for the whole." Fr. Bernas, in describing the offense which led to the
death of Leonardo Villa, concluded that the "offense of the respondents can be characterized as grave and serious,
subversive of the goals of Christian education and contrary to civilized behavior." Accordingly, he imposed the penalty
of dismissal on all respondent students.12

In a resolution dated March 18, 1991 and concurred in by petitioner Fr. Bernas,13 the Board excluded respondent
students Abas and Mendoza from the coverage of the resolution of March 10, 1991, inasmuch as at the time the latter
resolution was promulgated, neither had as yet submitted their case to the Board. Said resolution also set the
investigation of the two students on March 21, 1991.

On March 18, 1991, respondent students filed with the Regional Trial Court of Makati, a petition for certiorari,
prohibition and mandamus with prayer for temporary restraining order and preliminary injunction14 alleging that they
were currently enrolled as students for the second semester of school year 1990-91. Unless a temporary restraining
order is issued, they would be prevented from taking their examinations. The petition principally centered on the
alleged lack of due process in their dismissal.

On the same day, Judge Madayag issued a temporary restraining order the enjoining petitioners from dismissing
respondent students and stopping the former from conducting hearings relative to the hazing incident.15

Hearings in connection with the issuance of the temporary restraining order were then held. On April 7, 1991, the
temporary restraining order were issued on March 18, 1991 lapsed. Consequently, a day after the expiration of the
temporary restraining order, Dean del Castillo created a Special Board composed of Atty.(s) Jose Claro Tesoro,
Ramon Caguioa, and Ramon Ereñeta to investigate the charges of hazing against respondent students Abas and
Mendoza.

Respondent students reacted immediately by filing a Supplemental Petition of certiorari, prohibition

and mandamus with prayer for a temporary restraining order and preliminary injunction, to include the aforesaid
members of the Special Board, as additional respondents to the original petition.16

Petitioners moved to strike out the Supplement Petition arguing that the creation of the Special Board was totally
unrelated to the original petition which alleged lack of due process in the conduct of investigations by the Disciplinary
Board against respondent students; that a supplemental petition cannot be admitted without the same being set for
hearing and that the supplemental petition for the issuance of a temporary restraining order will, in effect, extend the
previous restraining order beyond its mandatory 20-day lifetime.17 Acting on the urgent motion to admit the
supplemental petition with prayer for a temporary restraining order, Judge Amin, as pairing judge of respondents
Judge Capulong, granted respondent students' prayer on April 10, 1991.18

On May 17, 1991, respondent Judge ordered petitioners to reinstate respondent students. Simultaneously, the court
ordered petitioners to conduct special examinations in lieu of the final examinations which allegedly the students were
not allowed to take, and enjoined them to maintain the status quo with regard to the cases of Adel Abas and Zosimo
Mendoza pending final determination of the issue of the instant case. Lastly, it directed respondent students to file a
bond in the amount of P50,000.00.19

On the same date, May 17, 1991, the Special Board investigating petitioners Abas and Mendoza and directed the
dropping of their names from its roll of students.20

The following day or on May 21, 1991, respondent judge issued the writ of preliminary injunction upon posting by
respondents of a bond dated May 17, 1991 in the amount of P50,000.00.
Hence, this special civil action of certiorari under Rule 65 with prayer for the issuance of a temporary restraining order
enjoining the enforcement of the May 17, 1991 order of respondent judge.21

In the case at bar, we come to grips with two relevant issues on academic freedom, namely: (1) whether a school is
within its rights in expelling students from its academic community pursuant to its disciplinary rules and moral
standards; and (2) whether or not the penalty imposed by the school administration is proper under the circumstances.

We grant the petition and reverse the order of respondent judge ordering readmission of respondent students.
Respondent judge committed grave abuse of discretion when he ruled that respondent students had been denied due
process in the investigation of the charges against them.

It is the threshold argument of respondent students that the decision of petitioner Fr. Joaquin Bernas, S. J., then
President of the Ateneo de Manila University, to expel them was arrived at without affording them their right to
procedural due process. We are constrained to disagree as we find no indication that such right has been violated.
On the contrary, respondent students' rights in a school disciplinary proceeding, as enunciated in the cases of Guzman
v. National University,22 Alcuaz v. PSBA, Q.C. Branch23 and Non v. Dames II24 have been meticulously respected by
petitioners in the various investigative proceedings held before they were expelled.

Corollary to their contention of denials of due process is their argument that it is Ang Tibay case25 and not
the Guzman case which is applicable in the case at bar. Though both cases essentially deal with the requirements of
due process, the Guzman case is more apropos to the instant case, since the latter deals specifically with the
minimum standards to be satisfied in the imposition of disciplinary sanctions in academic institutions, such as petitioner
university herein, thus:

(1) the students must be informed in writing of the nature and cause of any accusation against them;
(2) that they shall have the right to answer the charges against them with the assistance of counsel, if
desired: (3) they shall be informed of the evidence against them (4) they shall have the right to adduce
evidence in their own behalf; and (5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear and decide the case.26

It cannot seriously be asserted that the above requirements were not met. When, in view of the death of Leonardo
Villa, petitioner Cynthia del Castillo, as Dean of the Ateneo Law School, notified and required respondent students on
February 11, 1991 to submit within twenty-four hours their written statement on the incident,27 the records show that
instead of filing a reply, respondent students requested through their counsel, copies of the charges.28 While of the
students mentioned in the February 11, 1991 notice duly submitted written statements, the others failed to do so.
Thus, the latter were granted an extension of up to February 18, 1991 to file their statements.29

Indubitably, the nature and cause of the accusation were adequately spelled out in petitioners' notices dated February
14 and 20, 1991.30 It is to be noted that the February 20, 1991 letter which quoted Rule No. 3 of its Rules of Discipline
as contained in the Ateneo Law School Catalogue was addressed individually to respondent students. Petitioners'
notices/letters dated February 11, February 14 and 20 clearly show that respondent students were given ample
opportunity to adduce evidence in their behalf and to answer the charges leveled against them.

The requisite assistance of counsel was met when, from the very start of the investigations before the Joint
Administration Faculty-Student Committee, the law firm of Gonzales Batiler and Bilog and Associates put in its
appearance and filed pleadings in behalf of respondent students.

Respondent students may not use the argument that since they were not accorded the opportunity to see and examine
the written statements which became the basis of petitioners' February 14, 1991 order, they were denied procedural
due process.31 Granting that they were denied such opportunity, the same may not be said to detract from the
observance of due process, for disciplinary cases involving students need not necessarily include the right to cross
examination. An administrative proceeding conducted to investigate students' participation in a hazing activity need
not be clothed with the attributes of a judicial proceeding. A closer examination of the March 2, 1991 hearing which
characterized the rules on the investigation as being summary in nature and that respondent students have no right
to examine affiants-neophytes, reveals that this is but a reiteration of our previous ruling in Alcuaz.32

Respondent students' contention that the investigating committee failed to consider their evidence is far from the truth
because the February 14, 1992 ordered clearly states that it was reached only after receiving the written statements
and hearing the testimonies of several witnesses.33 Similarly, the Disciplinary Board's resolution dated March 10, 1991
was preceded by a hearing on March 2, 1991 wherein respondent students were summoned to answer clarificatory
questions.

With regard to the charge of hazing, respondent students fault petitioners for not explicitly defining the word "hazing"
and allege that there is no proof that they were furnished copies of the 1990-91 Ateneo Law School Catalogue which
prohibits hazing. Such flawed sophistry is not worthy of students who aspire to be future members of the Bar. It cannot
be overemphasized that the charge filed before the Joint Administration-Faculty-Student Investigating Committee and
the Disciplinary Board is not a criminal case requiring proof beyond reasonable doubt but is merely administrative in
character. As such, it is not subject to the rigorous requirements of criminal due process, particularly with respect to
the specification of the charge involved. As we have had occasion to declare in previous cases a similar nature, due
process in disciplinary cases involving students does not entail proceedings and hearings identical to those prescribed
for actions and proceedings in courts of justice.34 Accordingly, disciplinary charges against a student need not be
drawn with the precision of a criminal information or complaint. Having given prior notice to the students involved that
"hazing" which is not defined in the School Catalogue shall be defined in accordance with Senate Bill No. 3815, the
proposed bill on the subject of Sen. Jose Lina, petitioners have said what needs to be said. We deem this sufficient
for purposes of the investigation under scrutiny.

Hazing, as a ground for disciplining a students, to the extent of dismissal or expulsion, finds its raison d' etre in the
increasing frequency of injury, even death, inflicted upon the neophytes by their insensate "masters." Assuredly, it
passes the test of reasonableness and absence of malice on the part of the school authorities. Far from fostering
comradeship and esprit d' corps, it has merely fed upon the cruel and baser instincts of those who aspire to eventual
leadership in our country.

Respondent students argue that petitioners are not in a position to file the instant petition under Rule 65 considering
that they failed to file a motion for reconsideration first before the trial court, thereby by passing the latter and the Court
of Appeals.35

It is accepted legal doctrine that an exception to the doctrine of exhaustion of remedies is when the case involves a
question of law,36 as in this case, where the issue is whether or not respondent students have been afforded procedural
due process prior to their dismissal from petitioner university.

Lastly, respondent students argue that we erred in issuing a Temporary Restraining Order since petitioners do not
stand to suffer irreperable damage in the event that private respondents are allowed to re-enroll. No one can be so
myopic as to doubt that the immediate reinstatement of respondent students who have been investigated and found
by the Disciplinary Board to have violated petitioner university's disciplinary rules and standards will certainly
undermine the authority of the administration of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedom which has been enshrined in the
1935, 1973 and the present 1987 Constitutions.

At this juncture, it would be meet to recall the essential freedoms subsumed by Justice Felix Frankfurter in the term
"academic freedom" cited in the case of Sweezy v. New Hampshire,37 thus: (1) who may teach: (2) what may be taught;
(3) how it shall be taught; and (4) who may be admitted to study.

Socrates, the "first of the great moralists of Greece," proud to claim the title "gadfly of the State" has deservedly earned
for himself a respected place in the annals of history as a martyr to the cause of free intellectual inquiry. To Plato, this
great teacher of his was the "best, the most sensible, and the most sensible, and the most just man of his age." In
399 B.C., he willingly quaffed the goblet of hemlock as punishment for alleged "corruption" of the youth of Athens. He
describes in his own words how this charge of "corruption," the forerunner of the concept of academic freedom, came
about:

Young men of the richer classes, who have not much to do, come about me of their own accord: they
like to heart the pretenders examined, and they often imitate me, and examine others themselves;
there are plenty of person, as they soon discover, who think that they know something, but really know
little or nothing; and then those who are examined by them instead of being angry with themselves
are angry with me. This confounded Socrates, they say; this villainous misleader of youth. And then if
somebody asks them, Why, what evil does he practice or teach? they do not know, and cannot tell;
 but in order that they may not appear to be at a loss, they repeat the ready-made charges which are
used against all philosophers about teaching things up in the clouds and under the earth, and having
no gods, and making the worse appear the better cause; for they do not like to confess that their
pretense of knowledge has been detected — which is the truth; and as they are numerous and
ambitious and energetic, and are all in battle array and have persuasive tongues, they have filled your
ears with their loud and inveterate calumnies.38

Since Socrates, numberless individuals of the same heroic mold have similarly defied the stifling strictures of authority,
whether State, Church, or various interest groups, to be able to give free rein to their ideas. Particularly odious were
the insidious and blatant attempts at thought control during the time of the Inquisition until even the Medieval
universities, renowned as intellectual centers in Europe, gradually lost their autonomy.

In time, such noble strivings, gathering libertarian encrustations along the way, were gradually crystallized in the
cluster of freedoms which awaited the champions and martyrs of the dawning modern age. This was exemplified by
the professors of the new German universities in the 16th and 17th centuries such as the Universities of Leiden (1554),
Helmstatdt (1574) and Heidelberg (1652). The movement back to freedom of inquiry gained adherents among the
exponents of fundamental human rights of the 19th and 20th centuries. "Academic freedom", the term as it evolved
to describe the emerging rights related to intellectual liberty, has traditionally been associated with freedom of thought,
speech, expression and the press; in other words, with the right of individuals in university communities, such as
professors, researchers and administrators, to investigate, pursue, discuss and, in the immortal words of Socrates,
"to follow the argument wherever it may lead," free from internal and external interference or pressure.

But obviously, its optimum impact is best realized where the freedom is exercised judiciously and does not degenerate
into unbridled license. Early cases on this individual aspect of academic freedom have been stressed the need for
assuring to such individuals a measure of independence through the guarantees of autonomy and security of tenure.
The components of this aspect of academic freedom have been categorized under the areas of: (1) who may teach
and (2) how to teach.

It is to be realized that this individual aspects of academic freedom could have developed only pari passu with its
institutional counterpart. As corporate entities, educational institutions of higher learning are inherently endowed with
the right to establish their policies, academic and otherwise, unhampered by external controls or pressure. In
the Frankfurter formulation, this is articulated in the areas of: (1) what shall be taught, e.g., the curriculum and (2) who
may be admitted to study.

In the Philippines, the Acts which are passed with the change of sovereignty from the Spanish to the American
government, namely, the Philippine Bill of 1902 and the Philippine Autonomy Act of 1916 made no mention of the
rights now subsumed under the catch-all term of "academic freedom." This is most especially true with respect to the
institutional aspect of the term. It had to await the drafting of the Philippine Constitutions to be recognized as deserving
of legal protection.

The breakthrough for the concept itself was found in Section 5 of the 1935 Constitution which stated: "Universities
established by the State shall enjoy academic freedom." The only State University at that time, being the University
of the Philippines, the Charter was perceived by some as exhibiting rank favoritism for the said institution at the
expense of the rest.

In attempt to broaden the coverage of the provision, the 1973 Constitution provided in its Section 8(2): "All institutions
of higher learning shall enjoy academic freedom." In his interpretation of the provision, former U.P. President Vicente
G. Sinco, who was also a delegate to the 1971 Constitutional Convention, declared that it "definitely grants the right
of academic freedom to the University as an institution as distinguished from the academic freedom of a university
professor."39

Has the right been carried over the to the present Constitution? In an attempt to give an explicit definition with an
expanded coverage, the Commissioners of the Constitutional Commission of the 1986 came up with this formulation:
"Academic freedom shall be enjoyed by students, by teachers, and by researchers." After protracted debate and
ringing speeches, the final version which was none too different from the way it was couched in the previous two (2)
Constitutions, as found in Article XIV, Section 5(2) states: "Academic freedom shall be enjoyed in all institutions of
higher learning." In anticipation of the question as to whether and what aspects of academic freedom are included
herein, ConCom Commissioner Adolfo S. Azcuna explained: "Since academic freedom is a dynamic concept, we want
to expand the frontiers of freedom, especially in education, therefore, we shall leave it to the courts to develop further
the parameters of academic freedom."40

More to the point, Commissioner Jose Luis Martin C. Gascon asked: "When we speak of the sentence 'academic
freedom shall be enjoyed in all institutions of higher learning,' do we mean that academic freedom shall be enjoyed
by the institution itself?" Azcuna replied: "Not only that, it also includes . . . . " Gascon finished off the broken thought,—
"the faculty and the students." Azcuna replied: "Yes."

Since Garcia v. Loyola School of Theology,41 we have consistently upheld the salutary proposition that admission to
an institution of higher learning is discretionary upon a school, the same being a privilege on the part of the student
rather than a right. While under the education Act of 1982, students have a right "to freely choose their field of study,
subject to existing curricula and to continue their course therein up to graduation," such right is subject, as all rights
are, to the established academic and disciplinary standards laid down by the academic institution.42

"For private schools have the right to establish reasonable rules and regulations for the admission, discipline and
promotion of students. This . . . extends as well to parents . . . as parents are under a social and moral (if not legal)
obligation, individually and collectively, to assist and cooperate with the schools."43

Such rules are "incident to the very object of incorporation and indispensable to the successful management of the
college. The rules may include those governing student discipline."44 Going a step further, the establishment of rules
governing university-student relations, particularly those pertaining to student discipline, may be regarded as vital, not
merely to the smooth and efficient operation of the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as collectively, the
students demanded and plucked for themselves from the ponoply of academic freedom their own rights encapsulized
under the rubric of "right to education" forgetting that, in Holfeldian terms, they have a concomitant duty, and that is,
their duty to learn under the rules laid down by the school.

Considering that respondent students are proud to claim as their own a Christian school that includes Theology as
part of its curriculum and assidously strives to turn out individuals of unimpeachable morals and integrity in the mold
of the founder of the order of the Society of Jesus, St. Ignatius of Loyola, and their God-fearing forbears, their barbaric
and ruthless acts are the more reprehensible. It must be borne in mind that universities are established, not merely to
develop the intellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes; nay, the development,
or flowering if you will, of the total man.

In essence, education must ultimately be religious — not in the sense that the founders or charter members of the
institution are sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher
Alfred North Whitehead said, is "an education which inculcates duty and reverence."45 It appears that the particular
brand of religious education offered by the Ateneo de Manila has been lost on the respondent students.

Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a
minute longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as
those who come after them.

Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of Appeals that: "The maintenance of a
morally conducive and orderly educational environment will be seriously imperiled if, under the circumstances of this
case, Grace Christian is forced to admit petitioner's children and to reintegrate them to the student body."46 Thus, the
decision of petitioner university to expel them is but congruent with the gravity of their misdeeds. That there must be
such a congruence between the offense committed and the sanction imposed was stressed in Malabanan v.
Ramento.47

Having carefully reviewed the records and the procedure followed by petitioner university, we see no reason to reverse
its decision founded on the following undisputed facts: that on February 8, 9 and 10, 1991, the Aquila Legis Fraternity
conducted hazing activities; that respondent students were present at the hazing as auxiliaries, and that as a result of
the hazing, Leonardo Villa died from serious physical injuries, while Bienvenido Marquez was hospitalized. In light of
the vicious acts of respondent students upon those whom ironically they would claim as "brothers" after the initiation
rites, how can we countenance the imposition of such nominal penalties as reprimand or even suspension? We,
therefore, affirm petitioners' imposition of the penalty of dismissal upon respondent students. This finds authority and
justification in Section 146 of the Manual of Regulations for Private Schools.48

WHEREFORE, the instant petition is GRANTED; the order of respondent Judge dated May 17, 1991 reinstating
respondents students into petitioner university is hereby REVERSED. The resolution of petitioner Joaquin Bernas S.
J., then President of Ateneo de Manila University dated March 1991, is REINSTATED and the decision of the Special
Board DISMISSING respondent students ADEL ABAS and ZOSIMO MENDOZA dated May 20, 1991 is hereby
AFFIRMED.

G.R. No. 110280 October 12, 1993

UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS and DR. OLIVIA C. CAOILI in her capacity as
Secretary of the Board, petitioners,
vs.
HON. ELSIE LIGOT-TELAN in her capacity as Presiding Judge of Branch 87, Regional Trial Court of Quezon
City and RAMON P. NADAL, respondents.

ROMERO, J.:

In an effort to make the University of the Philippines (U.P.) truly the university of the people, the U.P. administration
conceptualized and implemented the socialized scheme of tuition fee payments through the Socialized Tuition Fee
and Assistance Program (STFAP), popularly known as the "Iskolar ng Bayan" program. Spawned by the public clamor
to overcome what was perceived as the sharpening elitist profile of the U.P studentry, the STFAP aspired to expand
the coverage of government educational subsidies so as to include the deserving in the lower rungs of the socio-
economic ladder.

After broad consultations with the various university constituencies by U.P. President Jose V. Abueva, the U.P. Board
of Regents issued on April 28, 1988 a Resolution establishing the STFAP. A year later, it was granted official
recognition when the Congress of the Philippines allocated a portion of the National Budget for the implementation of
the program.

In the interest of democratizing admission to the State University, all students are entitled to apply for STFAP benefits
which include reduction in fees, living and book subsidies and student assistantships which give undergraduate
students the opportunity to earn P12.00 per hour by working for the University.

Applicants are required to accomplish a questionnaire where, among others, they state the amount and source of the
annual income of the family, their real and personal properties and special circumstances from which the University
may evaluate their financial status and need on the basis of which they are categorized into brackets. At the end the
application form, the student applicant, as well as his parent, signs a sworn statement, as follows:

Statement of the Student

I hereby certify, upon my honor, that all the data and information which I have furnished are accurate
and complete. I understand that any willful misinformation and/or withholding of information will
automatically disqualify me from receiving any financial assistance or subsidy, and may serve as
ground for my expulsion from the University. Furthermore, is such misinformation and/or withholding
of information on my part is discovered after I have been awarded tuition scholarship or any form of
financial assistance, I will be required to reimburse all financial benefits plus the legal rate of interest
prevailing at the time of the reimbursement without prejudice to the filing of charges against me.
(Emphasis supplied for emphasis)

Moreover, I understand that the University may send a fact-finding team to visit my home/residence
to verify the veracity of the information provided in this application and I will give my utmost cooperation
in this regard. I also understand that my refusal to cooperate with the fact-finding team may mean
suspension of withdrawal of STFAP benefits and privileges.
 ———————
Student's Signature

Statement of the Applicant's Parent or Guardian

I hereby certify to the truthfulness and completeness of the information which my

son/daughter/dependent has furnished in this application together with all the documents attached. I
further recognize that in signing this application form, I share with my son/daughter/dependent the
responsibility for the truthfulness and completeness of the information supplied herein. (Emphasis
supplied for emphasis)

Moreover, I understand that the University may send a fact-finding team to visit my home/residence
to verify the information provided in this application and I will give my utmost cooperation in this regard.
I also understand that my refusal to cooperate with the fact-finding team may mean suspension or
withdrawal of STFAP benefits and privileges of my son/daughter/dependent.

—————————————————
Parent's/Legal Guardian's/Spouse's Signature1

From the early stages of its implementation, measures were adopted to safeguard the integrity of the program. One
such precautionary measure was the inclusion as one of the punishable acts under Section 2 (a) of the Rules and
Regulations on Student Conduct and Discipline of the University the deliberate falsification or suppression/withholding
of any material information required in the application form.

To further insure the integrity of the program, a random sampling scheme of verification of data indicated in a student's
application form is undertaken. Among those who applied for STFAP benefits for School Year 1989-90 was Ramon
P. Nadal, a student enrolled in the College of Law.

On March 14, 1991, a team composed of Arsenio L. Dona and Jose Carlo Manalo conducted a home investigation at
the residence of Nadal at 31 Twinpeaks Drive, Blue Ridge, Quezon City.

Ms. Cristeta Packing, Nadal's aunt, was interviewed and the team submitted a home visit report. Consolacion Urbino,
Scholarship Affairs Officer II, found discrepancies between the report and Nadal's application form. Forthwith, she and
Bella M. Villanueva, head of the Office of Scholarships and Student Services, presented the matter to the Diliman
Committee on Scholarships and Financial Assistance.2

In compliance with the said Committee's directive, Bella Villanueva wrote Nadal informing him that the investigation
showed that he had failed to declare, not only the fact that he had been maintaining a 1977 Corolla car which was
owned by his brother but also the income of his mother who was supporting his brothers Antonio and Federico. Nadal
was likewise informed that the Diliman Committee had reclassified him to Bracket 9 (from Bracket 4), retroactive to
June 1989, unless he could submit "proofs to the contrary." Nadal was required "to pay back the equivalent amount
of full school fees" with "interest based on current commercial rates." Failure to settle his account would mean the
suspension of his registration privileges and the withholding of clearance and transcript of records. He was also
warned that his case might be referred to the Student Disciplinary Tribunal for further investigation.3

On July 12, 1991, Nadal issued a certification stating, among other things, that his mother migrated to the United
States in 1981 but because her residency status had not yet been legalized, she had not been able to find a "stable,
regular, well-paying employment." He also stated that his mother, jointly with his brother Virgilio, was shouldering the
expenses of the college education of his two younger brothers.4

Noting further discrepancies between Nadal's application form and the certification, the U.P. charged Nadal before
the Student Disciplinary Tribunal (SDT) on August 23, 1991 with the following:

That respondent RAMON P. NADAL (UP Student No. 83-11640), a student of the College of Law, UP
System, Diliman, Quezon City, and STFAP (ISKOLAR NG BAYAN) recipient (Bracket 4 for SY 1989-
1990; Bracket 5 for SY 1990-1991) in his applications for STFAP (ISKOLAR NG BAYAN) benefits
which he filed for schoolyear 1989-1990, and schoolyear 1990-1991, with the Office of Scholarship
 and Student Services (formerly Scholarship and Financial Assistance Service) voluntarily and willfully
withheld and did not declare the following:

(a) That he has and maintains a car (Toyota Corolla, Model 1977); and

(b) The income of his mother (Natividad Packing Nadal) in the U.S.A., in support of the
studies of his brothers Antonio and Federico,

which acts of willfully withholding information is tantamount to acts of dishonesty in relation to his
studies, in violation of paragraph (a), Section 2, of the Rules and Regulations on Student Conduct and
Discipline, as amended. (Approved by the B.O.R. at its 876th meeting on 02 September 1976,
amended at the 923rd B.O.R. meeting on 31 January 1980, and further amended at its 1017th B.O.R.
meeting on 08 December 1988).5

On October 27, 1992, after hearing, the SDT6 rendered a decision in SDT Case No. 91-026 exculpating Nadal of the
charge of deliberately withholding in his STFAP application form information that he was maintaining a Toyota Corolla
car, but finding him guilty of "wilfully and deliberately withholding information about the income of his mother, who is
living abroad, in support of the studies of his brothers Antonio and Federico, 7 which is tantamount to acts of dishonesty
in relation to his studies in violation of paragraph [a], Section 2 of the Rules [now covered by paragraph (i), Section 2
of the Rules, as amended 25 June 1992]." As such, the SDT imposed upon Nadal the penalty of expulsion from the
University and required him to reimburse all STFAP benefits he had received but if he does not voluntarily make
reimbursement, it shall be "effected by the University thru outside legal action."8

The SDT decision was thereafter automatically elevated to the Executive Committee of U.P. Diliman for review
pursuant to Sec. 20 of the U.P. Rules on Student Conduct and Discipline. On November 26, 1992, the Executive
Committee, voting 13:4, affirmed the decision of the SDT; whereupon, Nadal appealed to the Board of Regents (BOR).
The appeal was included in the agenda of the BOR meeting on January 25, 1993.9

On January 18, 1993, upon her assumption to the Chairmanship of the Senate Committee on Education, thereby
making her automatically a member of the BOR, Senator Leticia Ramos-Shahani wrote the BOR a letter expressing
her view that, after a close review of Nadal s case by her legal staff, "it is only fair and just to find Mr. Nadal's appeal
meritorious and his arguments worthy of belief. Consequently, he should be allowed to graduate and take the bar
examinations this year." 10

At its January 25, 1993 meeting, the BOR affirmed the decision of the SDT but because "the Board was willing to
grant a degree of compassion to the appellant in view of the alleged status and predicament of the mother as an
immigrant 'TNT' in the United States," the penalty was modified "from Expulsion to One Year- Suspension, effective
immediately, plus reimbursement of all benefits received from the STFAP, with legal interest." The BOR also decided
against giving Nadal, a certification of good moral character. 11

Nadal forthwith filed a motion for reconsideration of the BOR decision, allegedly against the advice of his
counsel. 12 The motion was placed on the agenda of the February 25, 1993 meeting of the BOR. A day before said
date, Senator Shahani wrote the BOR another letter requesting that deliberation on Nadal's case be deferred until
such time as she could attend a BOR meeting.

On March 15, 1993, the U.P. filed an opposition to Nadal's motion for reconsideration. Thereafter, the BOR held a
special meeting to accommodate the request of Regent Shahani with Nadal's case as the sole item on its agenda.
Again, Nadal's motion for reconsideration was included in the March 23, 1993 agenda but in view of the absence of
Senator Shahani, the decision thereon was deferred.

At the special meeting of the BOR on March 28, 1993 at the Board Room of the Manila Polo Club in Forbes Park,
Makati, Regent Antonio T. Carpio raised the "material importance" of verifying the truth of Nadal's claim that earlier,
he was a beneficiary of a scholarship and financial aid from the Ateneo de Manila University (AdeMU). Learning that
the "certification issued by the AdeMU that it had not given Nadal financial aid while he was a student there was made
through a telephone call," Regent Carpio declared that there was as yet "no direct evidence in the records to
substantiate the charge." According to Carpio, if it should be disclosed that Nadal Falsely stated that he received such
financial aid, it would be a clear case of gross and material misrepresentation that would even warrant the penalty of
expulsion. Hence, he cast a conditional vote that would depend on the verification of Nadal's claim on the matter.
U.P. President and concurrently Regent Jose V. Abueva countered by stating that "a decision should not be anchored
solely on one piece of information which he considered irrelevant, and which would ignore the whole pattern of the
respondent's dishonesty and deception from 1989 which had been established in the investigation and the reviews."
He added that "the respondent's eligibility for his AdeMU high school scholarship and financial assistance from 1979
to 1983 does not in any way establish that he is 'not guilty as charged' before the SDT," since the formal charges
against him do not include withholding of information regarding scholarship grants received from other schools.

At the said March 28, 1993 special meeting, the Board decided to go into executive session where the following
transpired:

The Chairman of the Board, together with the President, directed the Secretary to reflect in the minutes
of the meeting the following decisions of the Board in executive session, with only the Board members
present.

A vote was held by secret ballot on whether Ramon P. Nadal was guilty or not guilty as charged of
willful withholding of information in relation to his application for Socialized Tuition and Financial
Assistance Program (STFAP) benefits which he filed for Schoolyears 1989-1990 and 1990-1991 which
is tantamount to act of dishonesty in relation to his studies, in violation of paragraph (a), Section 2 of
the Rules and Regulations on Student Conduct and Discipline, as amended.

The Chairman gave the following results of the Board action during the Executive Session: four (4)
voted guilty; three (3) voted not guilty; and three (3) gave conditional votes, pending verification with
Father Raymond Holscher of Ateneo de Manila University of Ramon P. Nadal's statement in his
STFAP application that he was granted scholarship while he was in high school. Should Ateneo
confirm that Nadal had not received financial assistance, then the conditional votes would be
considered as guilty, and if otherwise, then not guilty. The Chairman requested the President to make
the verification as soon as possible the next day. In answer to a query, the Chairman clarified that
once the information was received from Ateneo, there would be no need for another meeting to
validate the decision.

The President reiterated his objections to the casting of conditional votes.

The Chairman himself did not vote. 13

In the morning of March 29, 1993, the AdeMU issued a certification to the effect that Nadal was indeed a recipient of
a scholarship grant from 1979 to 1983. That evening, the BOR met again at a special meeting at the Westin Philippine
Plaza Hotel. According to Regent Carpio, in executive session, the BOR found Nadal "guilty" as the members voted
as follows: six members — guilty, three members — not guilty, and three members abstained. 14 Consequently, the
BOR imposed on Nadal the penalties of suspension for one (1) year effective March 29, 1993, non-issuance of any
certificate of good moral character during the suspension and/or as long as Nadal has not reimbursed the STFAP
benefits he had received with 12% interest per annum from march 30, 1993 and non-issuance of his transcript of
records until he has settled his financial obligations with the university. 15

On March 30, 1993, Nadal wrote President Abueva a handwritten letter stating that "after learning of the latest
decision" of the BOR, he had been "intensely concentrating on (his) job so that (he) can earn enough to pay for (his)
financial obligations to the University." Alleging that he was "now letting nature take its course," Nadal begged
President Abueva not to issue any press release regarding the case. 16

However, on April 22, 1993, Nadal filed with the Regional Trial Court of Quezon City a petition for mandamus with
preliminary injunction and prayer for a temporary restraining order against President Abueva, the BOR, Oscar M.
Alfonso, Cesar A. Buenaventura, Armand V. Fabella and Olivia C. Caoili. The petition prayed:

After trial on the merits, judgment be rendered as follows:

a. Making the preliminary injunction permanent;

 b. Ordering respondents 'to uphold and implement their decision rendered on 28 March 1993,
exonerating petitioner from all the charges against him, and accordingly dismissing SDT No. 91-026;

c. Ordering respondents jointly and severally to pay petitioner litigation expenses of at least
P150,000.00.

Other just and equitable reliefs are likewise prayed for. 17

The motion for the issuance of a temporary restraining order and the writ of preliminary injunction was immediately
set for hearing. At the May 10, 1993 hearing, the lower court declared that the only issue to be resolved was "whether
or not the respondents in Civil Case No. 93-15665 violated (Nadal's) right to due process when it rendered a decision
finding Nadal guilty of the charges against him" during the March 29, 1993 meeting. After the respondents had
presented their first witness, Dr. Olivia C. Caoili, the lower court asked respondents' counsel whether they were
amenable to maintaining the status quo. Said counsel replied in the negative, asserting the University's prerogative
to discipline students found guilty of violating its rules of discipline.18

On the same day, the lower court 19 issued the following Order:

The parties were heard on their respective positions on the incident (application for preliminary
injunction and prayer for temporary restraining order and opposition thereto). For lack of material time
set this for continuation on May 17 and 18, 1993 both at 2:30 p.m.

In the meantime, in order that the proceedings of this case may not be rendered moot and academic,
the respondents herein, namely: Jose V. Abueva, President of the University of the Philippines and
Vice-Chairman of the U.P. Board of Regents, Oscar M. Alfonso, Cesar A. Buenaventura and Armand
V. Fabella, members of the U.P. Board of Regents, Olivia C. Caoili, the officers, agents,
representatives, and all persons acting in their behalf, are hereby temporarily restrained from
implementing their decision rendered on March 29, 1993 in Administrative SDT Case No. 91-026
entitled University of the Philippines vs. Ramon P. Nadal, as reflected in the Minutes of the 1062nd
meeting of the Board of Regents, U.P. held at the Romblon Room, Westin Phil. Plaza, Manila, until
further order from this Court.

SO ORDERED.

Thereafter, Nadal presented as witnesses Regents Emerenciana Y. Arcellana, Ariel P. Tanangonan, Leticia R.
Shahani and Antonio T. Carpio. The University, on the other hand, presented Dr. Olivia Caoili and Nadal himself as a
hostile witness. On May 29, 1993, the lower court issued the following Order:

The petitioner complains that he was not afforded due process when, after the Board Meeting on SDT
Case No. 91-026 on March 28, 1993 that resulted in a decision of "NOT GUILTY" in his favor, the
Chairman of the U.P. Board of Regents, without notice to the herein petitioner, called another meeting
the following day to deliberate on his (the Chairman's) MOTION FOR RECONSIDERATION, which
this time resulted in a decision of "GUILTY." While he main issue of violation of due process raised in
the petition pends trial and resolution, the petitioner prays for the issuance of a writ of preliminary
injunction prohibiting the respondents from further proceeding with SDT Case No. 21-026 and from
suspending the petitioner for one year.

It is a basic requirement in the issuance of the preliminary injunctive writ that there must be a right to
be protected. As the issue in the case at bar is due process in the March 29 Board meeting, there is,
indeed, a right to be protected for, in administrative proceedings, a respondent's right to due process
exists not only at the early stages but also at the final stage thereof.

With the circulation to the members of the Board of Regents, as well as to other UP personnel, of the
Minutes of the March 29, 1993 meeting, even after this case had already been filed, the Court is
convinced that there now exists a threat to the petitioner (respondent in SDT Case No, 91-026) that
the decision of the Board of Regents finally finding him guilty of willfully withholding information
material to his application for Socialized Tuition and Financial Assistance Program (STFAP) benefits,
 will be implemented at any time, especially during the enrollment period, and this implementation
would work injustice to the petitioner as it would delay him in finishing his course, and, consequently,
in getting a decent and good paying job. The injury thus caused would be irreparable.

"Damages are irreparable within the meaning of the rule where there is no standard
by which their amount can be measured with reasonable accuracy. Where the damage
is susceptible of mathematical computation, it is not irreparable." (Social Security
Commission v. Bayona, et al., G.R. No. L-13555, May 30, 1962).

IN VIEW OF THE FOREGOING, and so as not to render moot the issues in the instant proceedings,
let a writ of preliminary injunction be issued restraining the respondents, their officers, agent(s),
representatives, and all persons acting in their behalf, from further proceeding with SDT Case No. 91-
026, and from suspending petitioner, upon the latter's filing a bond in the amount of P3,000.00.

IT IS SO ORDERED. 20

Dispensing with the filing of a motion for reconsideration, the petitioners filed the instant petition for certiorari and
prohibition with prayer for the issuance of an injunction or temporary restraining order, raising the following issues:
whether or not Nadal was denied due process in the administrative disciplinary proceedings against him, and, whether
or not the respondent judge gravely abused her discretion in issuing the May 29, 1993 writ of preliminary injunction
thereby preventing the BOR from implementing the suspension penalty it had imposed on Nadal.

Before proceeding with the discussion of the merits of the instant petition, we shall confront a threshold issue raised
by private respondent, namely, that Dr. Caoili, not having been authorized by the Board of Regents as a collegial body
to file the instant petition, and Dr. Abueva, who verified the petition, not being the "Board of Regents" nor "the
University of the Philippines," they are not real parties in interest who should file the same. 21

A real party in interest is one "who stands to be benefited or injured by the judgment or the party entitled to the avails
of the suit. 'Interest' within the meaning of the rule means material interest, an interest in issue and to be affected by
the decree, as distinguished from mere interest in the question involved, or a mere incidental interest."22 Undoubtedly,
the U.P. Board of Regents has an interest to protect inasmuch as what is in issue here is its power to impose
disciplinary action against a student who violated the Rules and Regulations on Student Conduct and Discipline by
withholding information in connection with his application for STFAP benefits, which information, if disclosed, would
have sufficed to disqualify him from receiving the financial assistance he sought. Such dishonesty, if left unpunished,
would have the effect of subverting a commendable program into which the University officials had devoted much
time and expended precious resources, from the conceptualization to the implementation stage, to rationalize the
socialized scheme of tuition fee payments in order that more students may benefit from the public funds allocated to
the State University.

Having specifically named Drs. Abueva and Caoili as respondents in the petition for mandamus that he filed below,
Nadal is now estopped from questioning their personality to file the instant petition. 23 Moreover, under Sec. 7 of the
U.P. Charter (Act 1870) and Sec. 11 of the University Code "all process" against the BOR shall be served on "the
president or secretary thereof'." It is in accordance with these legal provisions that Dr. Caoili is named as a petitioner.
Necessarily, Dr. Abueva, the University President and member of the BOR, has to verify the petition. It is not
mandatory, however, that each and every member of the BOR be named petitioners. As the Court has time and again
held, an action may be entertained, notwithstanding the failure to include an indispensable party where it appears that
the naming of the party would be but a formality. 24

No longer novel, as this is not a case of first impression, is the issue on the right of an academic institution to refuse
admission to a student arising from the imposition upon him of an administrative disciplinary sanction. In our recent
decision in Ateneo de Manila University v. Hon. Ignacio M. Capulong,25 wherein certain law students were dismissed
for hazing resulting in the death of another, we held that the matter of admission of students is within the ambit of
academic freedom and therefore, beyond the province of the courts to decide. Certain fundamental principles bear
stressing.

One of the arguments of Nadal in his petition for mandamus below was that he was denied due process. To clarify,
the so-called lack of due process referred only to the March 29, 1993 meeting of the BOR. As stated by respondent's
counsel: "What was conceded by undersigned counsel was that Nadal was afforded due process from the start of the
administrative proceeding up to the meeting of the Board of Regents on March 28, 1993."26

With respect to the March 29, 1993 meeting, respondent considers the same as "unquestionably void for lack of due
process" inasmuch as he was not sent a notice of said meeting. Counsel cites the ruling in Non v. Dames II 27 that
imposition of sanctions on students requires "observance of procedural due process," 28 the phrase obviously referring
to the sending of notice of the meeting.

Attention is drawn to the disparate factual environments obtaining in Non v. Dames II and in the instant case. In the
former case, the students were refused admission for having led or participated in student mass actions against the
school, thereby posing a collision between constitutionally cherished rights — freedom of expression and academic
freedom. In the case at bar, Nadal was suspended for having breached the University's disciplinary rules. In the Non
case, the Court ruled that the students were not afforded due process for even the refusal to re-enroll them appeared
to have been a mere afterthought on part of the school administrators. Here, Nadal does not dispute the fact that his
right to due process was held inviolate until the BOR decided to meet on March 29, 1993 with his case as the sole
item on the agenda.

In any event it is gross error to equate due process in the instant case with the sending of notice of the March 29,
1993 BOR meeting to respondent. University rules do not require the attendance in BOR meetings of individuals
whose cases are included as items on the agenda of the Board. This is not exclusive of students whose disciplinary
cases have been appealed to the Board of Regents as the final review body. At no time did respondent complain of
lack of notice given to him to attend any of the regular and special BOR meetings where his case was up for
deliberation. He would make an exception of the March 29, 1993 meeting for it was "supposed to reconsider the
decision made on March 28, 1993 exonerating respondent Nadal from all administrative charges against him." 29

Regent Antonio T. Carpio, in his testimony before the lower court on May 25, 1993 admitted that there was no final
verdict at the March 28, 1993 meeting in view of the conditional votes resulting from his assertion that he was "not
morally convinced that there was sufficient evidence to make a finding of guilty against Nadal because there was no
direct evidence that his mother received income from the United States and this income was sent to the Philippines
to support the studies of the children." 30 Two regents shared the view of Regent Carpio, with the following result: four
voted guilty, three, not guilty, and three cast conditional votes. The BOR agreed that, upon the suggestion of Regent
Carpio, they would still verify from the AdeMU about Nadal's alleged scholarship as a student in said institution.
Consequently, no definitive decision was arrived at by the BOR on March 28, 1993, Much less was a verdict of
exoneration handed down as averred by respondent.

Regent Carpio testified, with respect to the March 29, 1993 meeting where all twelve members of the BOR were
present, that all of them participated in the voting held to reconsider the previous day's decision. He stated "I remember
Regent Arcellana questioning the voting again on the ground that there was already a final decision, but there was a
vote taken on whether a motion for reconsideration can be decided by the board, and a majority of the board ruled
that the matter can be reconsidered again upon motion of the chairman." 31

At said meeting, six (6) regents voted to find respondent guilty, three (3) voted that he was not guilty and three (3)
abstained. As succinctly announced by Regent Carpio, the final decision was that which was rendered on March 29,
1993 as "no other decision was made by the Board with respect to the same issue." 32

Counsel for Nadal charged before the lower court that his client was "not given due process in the March 29 meeting
because the ground upon which he was again convicted was not the same as the original charge."33 Obviously, he
was referring to the basis of the conditional votes on March 28, i.e., whether or not Nadal was telling the truth when
he claimed that he received a scholarship grant from the AdeMU. However, Regent Carpio himself testified that the
charge considered was "exactly the same charge" of withholding information on the income of Nadal's mother. 34 It
should be stressed that the reason why Regent Carpio requested a verification of Nadal's claim that he was a scholar
at the AdeMU was that Regent Carpio was not "morally convinced" yet as to the guilt of Nadal. In other words, he
sought additional insights into the character of Nadal through the information that would be obtained from the AdeMU.

In this regard, we find such information to be irrelevant and a mere superfluity. In his July, 12, 1991 certification
aforementioned, Nadal admitted, although inconsistently, that his mother was a "TNT" who could not find a "stable,
regular, well-paying employment" but that she was supporting the education of his brothers with the help of another
son. To our mind, this constitutes sufficient admission that Nadal withheld information on the income, however measly
and irregular, of his mother. Unlike in criminal cases which require proof beyond reasonable doubt as basis for a
judgment, in administrative or quasi-judicial proceedings, only substantial evidence is required, that which means
more than a mere scintilla or relevant evidence as a reasonable mind might accept as adequate to support a
conclusion, even if other minds equally reasonable might conceivably opine otherwise. 35 In light of the foregoing
circumstances, we find that Nadal has been sufficiently proven to have violated his undertaking to divulge all
information needed when he applied for the benefits of the STFAP.

Let it not be forgotten that respondent aspires to join the ranks of the professionals who would uphold truth at all costs
so that justice may prevail. The sentinels who stand guard at the portals leading to the hallowed Temples of Justice
cannot be overzealous in admitting only those who are intellectually and morally fit. In those who exhibit duplicity in
their student days, one spots the shady character who is bound to sow the seeds of chicanery in the practice of his
profession.

Having reached his senior year, respondent is presumably aware that the bedrock axiom, Canon I, Rule 1.01 of the
Code of Professional Responsibility states: "A lawyer shall not engage in unlawful, dishonest, immoral or deceitful
conduct." Further on, Canon 7, Rule 7.01 provides: "A lawyer shall be answerable for knowingly making a false
statement or suppressing a material fact in connection with his application for admission to the bar." (Emphasis
supplied for emphasis)

Surely, it is not too early to warn entrants to the noble profession of law that honesty and integrity are requirements
no less weighty than hurdling the Bar examinations. This is the reason why a certification of good moral character is
one of the documents that must be submitted in applying to take said examination. In fact, a charge of immoral or
deceitful conduct on the part of an applicant, when proved, is a ground for disqualifying him.

To revert to the instant case, inasmuch as it has been shown sufficiently that respondent has committed an act of
dishonesty in withholding vital information in connection with his application for STFAP benefits, all in blatant violation
of the Rules and Regulations on Student Conduct and Discipline of petitioner University, the latter's inherent power
and authority to impose disciplinary sanction may be invoked and rightfully exercised.

As a Bohemian proverb puts it: "A school without discipline is like a mill without water." Insofar as the water turns the
mill, so does the school's disciplinary power assure its right to survive and continue operating. In more relevant terms,
through its power to impose disciplinary sanctions, an educational institution is able to exercise its academic freedom
which is, in the case at bar, the right to suspend and refuse admission to a student who has subverted its authority in
the implementation of the critically important STFAP.

At the risk of being repetitious, the matter of admission to a University is encompassed by the right of academic
freedom. In Garcia v. The Faculty Admission Committee, Loyola School of Theology 36 the Court stated that a school
or college which is possessed of the right of academic freedom "decides for itself its aims and objectives and how
best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare
calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of students." Elucidating,
in Ateneo de Manila University v. Hon. Ignacio M. Capulong, 37 the Court further expounded:

Since Garcia v. Loyola School of Theology, we have consistently upheld the salutary proposition that
admission to an institution of higher learning is discretionary upon a school, the same being a privilege
on the part of the student rather than a right. While under the Education Act of 1982, students have a
right "to freely choose their field of study, subject to existing curricula and to continue their course
therein up to graduation," such right is subject, as all rights are, to the established academic and
disciplinary standards laid down by the academic institution.

For private schools have the right to establish reasonable rules and regulations for the admission,
discipline and promotion of students. This right . . . extends as well to parents . . . as parents are under
a social and moral (if not legal) obligation, individually and collectively, to assist and cooperate with
the schools.

Such rules are "incident to the very object of incorporation and indispensable to the successful
management of the college. The rules may include those governing student discipline." Going a step
further, the establishment of rules governing university-student relations, particularly those pertaining
 to student discipline, may be regarded as vital, if not merely to the smooth and efficient operation of
the institution, but to its very survival.

Within memory of the current generation is the eruption of militancy in the academic groves as
collectively, the students demanded and plucked for themselves from the panoply of academic
freedom their own rights encapsulized under the rubric of "right to education" forgetting that, in
Hohfeldian terms, they have a concomitant duty, that is, their duty to learn under the rules laid down
by the school. (Emphasis supplied.)

On the second issue presented for adjudication, the Court finds that the lower court gravely abused its discretion in
issuing the writ of preliminary injunction of May 29, 1993. The issuance of the said writ was based on the lower court's
finding that the implementation of the disciplinary sanction of suspension on Nadal "would work injustice to the
petitioner as it would delay him in finishing his course, and consequently, in getting a decent and good paying job."
Sadly, such a ruling considers only the situation of Nadal without taking into account the circumstances clearly of his
own making, which led him into such a predicament. More importantly, it has completely disregarded the overriding
issue of academic freedom which provides more than ample justification for the imposition of a disciplinary sanction
upon an erring student of an institution of higher learning.

From the foregoing arguments, it is clear that the lower court should have restrained itself from assuming jurisdiction
over the petition filed by Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and certain right
on the part of the petitioner being required. 38 It is of no avail against an official or government agency whose duty
requires the exercise of discretion or judgment. 39

Hence, by issuing the writ of preliminary injunction, the lower court dared to tread upon legally forbidden grounds. For,
by virtue of the writ, the University's exercise of academic freedom was peremptorily curtailed. Moreover, the door
was flung wide open for Nadal to do exactly what the decision of the BOR prohibited him from doing and that is, to
violate the suspension order by enrolling for the first semester of 1993-1994. It must have been with consternation
that the University officials helplessly watching him complete his academic requirements for taking the Bar. 40 In the
event that he be allowed to continue with his studies he would, in effect render moot and academic the disciplinary
sanction of suspension legally imposed upon him by the BOR's final decision of March 29, 1993. What is to prevent
other aspirants for STFAP scholarships from misleading the University authorities by misrepresenting certain facts or
as in instant case, withholding vital information and stating downright falsehoods, in their application forms with
impunity? Not only would this undermine the authority of the U.P. to discipline its students who violated the rules and
regulations of the institution but, more importantly, subvert the very concept and lofty intent to give financial assistance
to poor but deserving students through the STFAP which, incidentally, has not ceased refining and modifying it's
operations.

WHEREFORE, the instant petition is GRANTED and the lower court is hereby ordered to DISMISS the petition
for mandamus. SO ORDERED.

G.R. No. 81798 December 29, 1989

LAO GI alias FILOMENO CHIA, SR., his wife, ONG UE, and his children FILOMENO, JR., MANUEL, ROSITA
VICENTA and DOMINGA, all surnamed CHIA, petitioners
vs.
HONORABLE COURT OF APPEALS AND COMMISSION ON IMMIGRATION AND
DEPORTATION, respondents.

GANCAYCO, J.:

On September 3, 1958 the Secretary of Justice rendered Opinion No. 191, series of 1958 finding Filomeno Chia, Jr.,
alias Sia Pieng Hui to be a Filipino citizen as it appears that his father Filomeno Chia, Sr. is a Filipino citizen born on
November 28, 1899 being the legitimate son of Inocencio Chia and Maria Layug of Guagua, Pampanga. However on
October 3, 1980 the Minister of Justice rendered Opinion No. 147, series of 1980 cancelling Opinion No. 191, series
of 1958 and setting aside the citizenship of Filomeno Chia, Sr. on the ground that it was founded on fraud and
misrepresentation. A motion for reconsideration of said Opinion was denied by the Minister of Justice on February 13,
1981.
On March 9, 1981 a charge for deportation was filed with the Commission on Immigration and Deportation (CID)
against Lao Gi alias Filomeno Chia, Sr., his wife and children.

An amended charge was filed with the CID on March 19,1981 alleging that said respondents refused to register as
aliens having been required to do so and continued to refuse to register as such. On August 31, 1981 another
amended charge was filed alleging that Manuel Chia committed acts of undesirability.

On September 4, 1981 said respondents filed a motion to dismiss the amended charges on the ground that the CID
has no authority to reopen a matter long settled under Opinion No. 191, series of 1958. The motion to dismiss was
opposed by the private prosecutor. The CID special prosecutor also filed an opposition on the ground that the
citizenship may be threshed out as the occasion may demand and that due process was accorded to respondents.
The respondents filed a reply thereto. The motion to dismiss was denied by the CID and a motion for reconsideration
of said denial was also denied in a resolution dated December 10, 1981.

Said respondents then filed with this Court on February 11, 1982 a petition for certiorari and prohibition with a prayer
for the issuance of a writ of preliminary injunction and restraining order docketed as G.R. No. 59619. After requiring a
comment thereon, on April 28, 1982 this court en banc resolved to dismiss the petition for lack of merit.

Earlier, Manuel Chia was charged with falsification of public documents in the Court of First Instance (CFI) of Manila
in Criminal Case No. 60172 for alleging that he was a Filipino citizen in the execution of a Deed of Absolute Sale of
certain real property. He was acquitted by the trial court in an order dated May 5, 1982 on the ground that Opinion
No. 191, series of 1958 of the Secretary of Justice may be equated as res judicata and that revocation thereof by
Opinion No. 147, series of 1980 cannot be considered just, fair and reasonable.

On June 1, 1982 respondents filed a motion for reconsideration of the aforesaid resolution of this Court dismissing
the petition but this was denied by another resolution of this Court dated August 17, 1982. A second motion for
reconsideration thereof was also denied by this Court on September 16, 1982.

On September 23, 1982 the CID set the deportation case against respondents for hearing and Acting Commissioner
Victor G. Nituda gave respondents three (3) days to move for reconsideration of the order directing them to register
as aliens and to oppose the motion for their arrest. On September 27, 1982 respondents filed said motion for
reconsideration and opposition but this was denied by Acting Commissioner Nituda on September 28, 1982. The latter
directed respondents to register as aliens within two (2) days from notice thereof. The deportation case was set for
hearing on October 5, 1 982 but on the same day respondents filed the petition for certiorari and prohibition with a
prayer for injunctive relief in the Court of First Instance of Manila docketed as Civil Case No. 82- 12935 whereby a
writ of preliminary injunction was issued. On April 17,1985 a decision was rendered by the trial court dismissing the
petition for lack of legal basis and for want of supervisory jurisdiction on the part of the trial court on the particular
subject involved. The writ of preliminary injunction previously issued was dissolved.

An appeal therefrom was interposed to the Court of Appeals. In due course a decision was rendered on August 19,
1987 dismissing the appeal with costs against petitioners. A motion for reconsideration of the decision filed by
petitioners was also denied in a resolution dated January 7, 1988.

Hence, the herein petition for certiorari filed by petitioners wherein they seek to set aside the decision of the Court of
Appeals and ask that a new one be rendered setting aside the order of the CID dated September 28, 1982 and
directing it to proceed with the reception of the evidence in support of the charges against the petitioners. The issues
raised in the petition are as follows:

1. The issues raised in G.R. No. 59619 before the Honorable Supreme Court were different from the issues raised in
Civil Case No. 82-12935-CV.

2. The minute resolution of the Honorable Supreme Court in G.R. No. 59619 did not make a categorical ruling that
petitioner entered and remained in the Philippines by false pretenses.

3. The issue of whether or not petitioners' citizenship was secured by fraud is precisely the subject matter of the
proceedings before the Commission on Immigration and Deportation, in which no evidence had been presented yet
in support of the charge of fraud in the acquisition of petitioners' citizenship.
4. Petitioners are not subject to immediate deportation.

5. The order for the arrest of petitioners in case of failure to register as aliens was premature since there was no
competent determination yet that their citizenship was indeed procured by fraud.

6. The Honorable Court of Appeals overstepped its appellate jurisdiction, when it ruled on matters not covered by the
Decision of the lower court.

There can be no question that the CID has the authority and jurisdiction to hear and determine the deportation case
against petitioners and in the process determine also the question of citizenship raised by the petitioners. Section
37(a) (1) of the Immigration Act provides as follows:

SEC. 37. (a) The following aliens shall (1) Any alien who enters the
be arrested upon the warrant of the Philippines after the effective date of
Commissioner of Immigration or of any this Act by means of false and
other officer designated by him for the misleading statements or without
purpose and deported upon the inspection and admission by the
warrant of the Commissioner of immigration authorities at a designated
Immigration after a determination by port of entry or at any place other than
the Board of Commissioners of the at a designated port of entry. (As
existence of the ground for deportation amended by Sec. 13, Rep. Act No.
as charged against the alien: 503.) ...

From the foregoing provision it is clear that before any alien may be deported upon a warrant of the Commissioner of
Immigration, there should be a prior determination by the Board of Commissioners of the existence of the ground as
charged against the alien.

In this case it appears that petitioners are charged with having entered the Philippines by means of false and
misleading statements or without inspection or admission by the immigration authorities at a designated port of entry.

After appropriate charges are filed in the CID the specific grounds of which he should be duly informed of, a hearing
should be conducted, and it is only after such a hearing by the CID that the alien may be ordered deported. In such a
hearing, Opinion No. 191, Series of 1958 of the Secretary of Justice and Opinion No. 147, Series of 1980 of the
Minister of Justice will bear much weight in the determination by the CID of the citizenship of said petitioners.

The petitioners question the Order of Acting Commissioner Nituda that they register as aliens as required by the
Immigration Act. While it is not disputed that it is also within the power and authority of the Commissioner to require
an alien to so register, such a requirement must be predicated on a positive finding that the person who is so required
is an alien. In this case where the very citizenship of the petitioners is in issue there should be a previous determination
by the CID that they are aliens before the petitioners may be directed and required to register as aliens.

The power to deport an alien is an act of the State. It is an act by or under the authority of the sovereign power. 1 It is
a police measure against undesirable aliens whose presence in the country is found to be injurious to the public good
and domestic tranquility of the people. 2

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is
a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional
right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines
particularly on criminal procedure are applicable to deportation proceedings.

Under Section 37(c) of the Philippine Immigration Act for deportation nor without being given
of 1940 as amended, it is provided: a hearing under rules of procedure to
be prescribed by the Commissioner of
c No alien shall be deported without Immigration.
being informed of the specific grounds
Hence, the charge against an alien must specify the acts or omissions complained of which must be stated in ordinary
and concise language to enable a person of common understanding to know on what ground he is intended to be
deported and enable the CID to pronounce a proper judgment. 3

Before any charge should be filed in the CID a preliminary investigation must be conducted to determine if there is a
sufficient cause to charge the respondent for deportation. 4 The issuance of warrants of arrest, arrests without warrant
and service of warrants should be in accordance likewise with Rule 113 of the 1985 Rules of Criminal
Procedure; 5 search warrants issued by the CID shall be governed by Rule 126 of the 1985 Rules of Criminal
Procedure; 6 and so the matter of bail, motion to quash, and trial, 7 among others. Fealty to the prescribed rules of
procedure in deportation cases shall insure a speedy, fair and just dispensation of justice.

The Court takes note of the fact that a private prosecutor is assisting in the prosecution of the case by the special
prosecutor of the CID. The Court sees no reason why a private prosecutor should be allowed to participate in a
deportation case. Under the 1985 Rules on Criminal Procedure, particularly Section 16, Rule 110 thereof, an offended
party may intervene in a criminal prosecution when there is civil liability arising from the criminal action claimed by
said party. In such case he may intervene by counsel.

In deportation cases, the Court cannot conceive of any justification for a private party to have any right to intervene.
Even if such party can establish any damages due him arising from the deportation charge against the alien, such
relief cannot be afforded him in the deportation proceeding. His recourse if at all is in the ordinary courts. Thus the
Court rules that the intervention of a private prosecutor should not be allowed in deportation cases. The possibility of
oppression, harrassment and persecution cannot be discounted. The deportation of an alien is the sole concern of
the State. This is the reason why there are special prosecutors and fiscals tasked to prosecute such cases.

WHEREFORE, the petition is hereby GRANTED and the questioned order of the respondent Commission on
Immigration and Deportation dated September 28, 1982 is hereby set aside. The respondent Commission on
Immigration and Deportation is hereby directed to continue hearing the deportation case against petitioners and
thereafter, based on the evidence before it, to resolve the issue of citizenship of petitioners, and if found to be aliens,
to determine whether or not the petitioners should be deported and/or otherwise ordered to register as aliens. No
costs. SO ORDERED.

G.R. No. 154745 January 29, 2004

COMMISSIONER ANDREA D. DOMINGO, BUREAU OF IMMIGRATION, Petitioner,

vs.
HERBERT MARKUS EMIL SCHEER, Respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review under Rule 45 of the Rules of Court, as amended, of the Decision 1 of the Court of Appeals
in CA-G.R. SP No. 71094 granting the respondent’s petition for certiorari and prohibition annulling the order of arrest
issued by the petitioner, and permanently enjoining her from deporting the respondent from the Philippines. Through
its decision, the CA virtually reversed the Summary Deportation Order2 of the Board of Commissioners (BOC) and its
Omnibus Resolution3 denying the respondent’s Urgent Motion for Reconsideration of said Order, and enjoining the
petitioner from deporting the respondent.

The facts as culled from the records are as follows:

Respondent Herbert Markus Emil Scheer, a native of Ochsenfurt, Germany, was a frequent visitor of the Philippines.
On July 18, 1986, his application for permanent resident status was granted.4 The Bureau of Immigration and
Deportation (BID) issued in favor of the respondent Alien Certificate of Registration No. B-396907 dated September
16, 19875 and Immigration Certificate of Residence No. 256789 dated February 24, 1988.6 The Commissioner stated
that the granting of the petition would redound to the benefit of the Filipino people.7 During his sojourn in the Philippines,
the respondent married widowed Edith delos Reyes8 with whom he had two daughters. They had a son, Herbert
Scheer, Jr., but he passed away on November 13, 1995.9 They resided in Puerto Princesa City, Palawan, where the
respondent established and managed the Bavaria Restaurant. On May 21, 1991, he was appointed Confidential Agent
by then NBI Director Alfredo S. Lim.10

In a Letter dated June 29, 1995, Vice Consul Jutta Hippelein informed the Philippine Ambassador to Bonn, Germany,
that the respondent had police records and financial liabilities in Germany.11

The Department of Foreign Affairs received from the German Embassy in Manila Note Verbale No. 369/95 dated July
26, 1995, informing it that the respondent was wanted by the German Federal Police; that a warrant of arrest had
been issued against him; and that the respondent will be served with an official document requesting him to turn over
his German passport to the Embassy which was invalidated on July 2, 1995.12 The Embassy requested the Department
of Foreign Affairs to inform the competent Philippine authorities of the matter. The BOC thereafter issued a Summary
Deportation Order dated September 27, 1997. The penultimate paragraph of the Order reads:

WHEREFORE, the foregoing considered, the Board of Commissioners hereby orders the following:

1. Cancellation of respondent’s permanent residence visa;

2. Respondent’s summary deportation and permanent exclusion from the Philippines; and

3. Inclusion of his name on the Bureau’s Blacklist.

PROVIDED, however that said summary deportation should be held in abeyance in case said alien has a pending
final and executory criminal conviction where the imposed penalty is imprisonment, in which case, he has to serve
first such imposed penalty, and/or has a pending criminal, civil or administrative action and a Hold Departure Order
has been issued or that his presence in said action is indispensable. In such instances, the alien should remain in the
custody of the Bureau until his turnover to the proper authorities in case he has to serve imprisonment or in case of
pendency of civil or criminal administrative action, he shall remain in the custody of the Bureau until such time that his
pending cases shall have been decided, terminated or settled, as the case may be, unless circumstances demand
the immediate implementation of this summary deportation.

...

SO ORDERED.13

In issuing the said order, the BOC relied on the correspondence from the German Vice Consul on its speculation that
it was unlikely that the German Embassy will issue a new passport to the respondent; on the warrant of arrest issued
by the District Court of Germany against the respondent for insurance fraud; and on the alleged illegal activities of the
respondent in Palawan.14 The BOC concluded that the respondent was not only an undocumented but an undesirable
alien as well.

When the respondent was apprised of the deportation order, he forthwith aired his side to then BID Commissioner
Leandro T. Verceles. The Commissioner allowed the respondent to remain in the Philippines, giving the latter time to
secure a clearance and a new passport from the German Embassy.15 Then Presidential Assistant Teodorico K. Imperial
wrote a Testimonial dated November 24, 1995, in behalf of the respondent addressed to Commissioner Verceles.
Nonetheless, the respondent, through counsel, filed on December 5, 1995 an Urgent Motion for Reconsideration of
the Summary Deportation Order of the BOC.16 In his motion, the respondent alleged, inter alia, that:

1. The elementary rules of due process require notice and opportunity to be heard before a person can be
lawfully deprived of his right (Ute Paterok vs. Bureau of Customs, 193 SCRA 132). In the instant case, although
it is acknowledged that the Honorable Office may conduct summary deportation proceedings, respondent was
not given notice and opportunity to be heard before said Summary Deportation Order was issued.
Respondent’s right to procedural due process was therefore violated. Consequently, the Summary
Deportation Order is invalid.

2. In issuing, the Summary Deportation Order, this Honorable Office relied on Note Verbal No. 369/95 issued
by the Embassy of the Federal Republic of Germany, Manila, notifying the Department of Foreign Affairs and
this Honorable Office about the warrant of arrest against respondent for alleged illegal insurance fraud and
 illegal activities. However, a close scrutiny of said note verbal shows that nowhere therein does it state that
respondent was involved in insurance fraud or in any kind of illegal activities in Germany or anywhere else in
the world, such as in Palawan. Therefore, the main basis of the Summary Deportation Order is incompetent
as evidence against respondent who is, like every Filipino, presumed to be innocent until his guilt is proven
beyond reasonable doubt.

3. The power to deport alien is a police power measure necessary against undesirable alien whose presence
in the country is injurious to the public good and domestic tranquility of the country (Board of Commissioner
Commission on Immigration vs. De la Rosa, 197 SCRA 853). It is respectfully submitted that respondent is
not an undesirable alien. He has stayed in the Philippines for more or less than (10) years. He has married a
Filipina and has three (3) minor children. He has established his business in Palawan and he has no police
record whatsoever. Respondent has considered the Philippines his second home and he has nowhere else
to go back to in Germany. Under the circumstances and for humanitarian considerations, respondent is not
an undesirable alien whose deportation is warranted. Likewise, the mere fact that his passport was not
renewed by the German Embassy does not also automatically justify the deportation of respondent.17

However, the BOC did not resolve the respondent’s motion. The respondent was neither arrested nor deported.

Meanwhile, on February 15, 1996, the District Court of Straubing rendered a Decision dismissing the criminal case
against the respondent for physical injuries.18 The German Embassy in Manila, thereafter, issued a temporary passport
to the respondent.

In a Letter dated March 1, 1996, the respondent informed Commissioner Verceles that his passport had been renewed
following the dismissal of the said criminal case. He reiterated his request for the cancellation of the Summary
Deportation Order dated September 27, 1995 and the restoration of his permanent resident status.19 Subsequently, on
March 12, 1996, the German Embassy issued to the respondent a regular passport, to expire on March 11, 2006.

The BOC still failed to resolve the respondent’s Urgent Motion for Reconsideration. Commissioner Verceles did not
respond to the respondent’s March 1, 1996 Letter. The respondent remained in the Philippines and maintained his
business in Palawan. On March 20, 1997, the Department of Labor and Employment approved his application for
Alien Employment Registration Certificate as manager of the Bavaria Restaurant in Puerto Princesa City.

In the meantime, petitioner Immigration Commissioner Andrea T. Domingo assumed office. She wrote the German
Embassy and inquired if the respondent was wanted by the German police. On April 12, 2002, the German Embassy
replied that the respondent was not so wanted.20 At about midnight on June 6, 2002, Marine operatives and BID agents
apprehended the respondent in his residence on orders of the petitioner. He was whisked to the BID Manila Office
and there held in custody while awaiting his deportation. Despite entreaties from the respondent’s wife21 and his
employees, the petitioner refused to release the respondent.22

Shocked at the sudden turn of events, the respondent promptly communicated with his lawyer. The latter filed with
the BID a motion for bail to secure the respondent’s temporary liberty. On June 11, 2002, the respondent’s counsel
filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with a prayer for temporary
restraining order and writ of preliminary injunction, to enjoin the petitioner from proceeding with the respondent’s
deportation.23 The respondent (petitioner therein) alleged, inter alia, that his arrest and detention were premature,
unjust, wrongful, illegal and unconstitutional, effected without sufficient cause and without jurisdiction or with grave
abuse of discretion. He asserted that there was no speedy remedy open to him in the ordinary course of law24 and that
his Urgent Motion for Reconsideration of the Summary Deportation Order of the BOC had not yet been resolved
despite the lapse of more than six years. The respondent averred that he was a fully documented alien, a permanent
resident and a law-abiding citizen. He, thus, prayed as follows:

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable Court that:

1. Upon the filing of this Petition, this Honorable Court issue a Temporary Restraining Order to enjoin
respondent Commissioner from enforcing any order to deport petitioner;
 2. After due hearing, a writ of preliminary and mandatory injunction be correspondingly issued to maintain the
status quo pending resolution of the Petition on the merits.

3. After hearing, judgment be rendered:

a) Directing and mandating respondent Commissioner and the body she heads to resolve the Motion
for Reconsideration filed in 1995, in his favor, and nullifying or suspending the implementation of any
order, oral or written, she may have issued or issue to deport petitioner; and

b) Making the injunction in petitioner’s favor permanent.

Petitioner likewise prays for such other and further relief as may be deemed just and equitable in the premises, such
as directing respondent, if Herbert Scheer is deported before the matter is heard on notice, to authorize his return.25

The BOC ruled that its September 27, 1995 Order had become final and executory after the lapse of one year, citing
our rulings in Sy vs. Vivo,26 and Lou vs. Vivo.27 The BOC also held that it was not competent to reverse the September
27, 1995 Order, citing our ruling in Immigration Commissioner vs. Fernandez.28 It declared that the respondent may
seek the waiver of his exclusion via deportation proceedings through the exceptions provided by Commonwealth Act
No. 613,29 Section 29 (a)(15), but that his application for the waiver presupposes his prior removal from the Philippines.

In a parallel development, the respondent procured a letter from the National Bureau of Investigation (NBI) in Puerto
Princesa City certifying that he had no pending criminal record.30 The Puerto Princesa City Philippine National Police
(PNP) also issued a certification that the respondent had no pending criminal or derogatory records in the said office.31

Meanwhile, on June 26, 2002, the Court of Appeals issued a status quo order restraining the petitioner from deporting
the respondent on a bond of ₱100,000.00.32 On July 18, 2002, the BOC issued an Omnibus Resolution dated June
14, 2002, pendente lite denying the respondent’s Urgent Motion for Reconsideration, Motion for Bail/Recognizance,
and the Letter dated June 11, 2002. The decretal portion of the resolution reads:

Wherefore, in view of the foregoing circumstances, we deny the prayers of the Urgent Motion for Reconsideration of
5 December 1995, the Motion for Bail/Recognizance dated 7 June 2002 and the Letter of 11 June 2002. Further, we
hereby order the following:

1. Subject to the submission of appropriate clearances, the summary deportation order the respondent Herbert
Scheer, German, under BI Office Memorandum Order No. 34 (series of 1989) and the BOC Summary
Deportation Order of 27 September 1995;

2. Permanent exclusion of Herbert Scheer from the Philippines under C.A. No. 613, Section 40 (a)(15).

3. Inclusion of the name of Herbert Scheer in the Immigration Black List; and

4. Forfeiture of the bail bond, if any, of Herbert Scheer under C.A. No. 613, Section 40 (a)(15).

IT IS SO ORDERED.33

During the hearing of the respondent’s plea for a writ of preliminary mandatory injunction before the CA on July 22,
2002, the Office of the Solicitor General (OSG) manifested that the State had no opposition to the respondent’s re-
entry and stay in the Philippines, provided that he leave the country first and re-apply for admission and residency
status with the assurance that he would be re-admitted.34 The respondent’s counsel manifested to the appellate court
that he had just been informed by the OSG of the Omnibus Resolution of the BOC dated June 14, 2002.

In her Comment on the Petition, the petitioner (the respondent therein) alleged, inter alia, the following:

1) that the BOC was an indispensable party to the petition;

2) the petitioner’s failure to implead the BOC warranted the denial of the petition;
 3) the allowance by then Immigration Commissioner Leandro Verceles for the petitioner therein to renew his
passport and secure clearances, even if proved, was not binding on the BOC;

4) the September 27, 1995 Order of the BOC was already executory when the respondent filed her petition in
the CA;

5) the German Embassy’s issuance of a new passport did not legalize the respondent’s stay in this country,
which became illegal on July 2, 1995 when his passport expired;

6) the respondent therein did not act with abuse of discretion in causing the arrest and detention of the
respondent based on the BOC’s Summary Deportation Order; and

7) the BOC did not act with grave abuse of discretion in issuing its Summary Deportation Order and Omnibus
Resolution and such order and resolution were not mooted by the German Embassy’s issuance of a new
passport in favor of the respondent.

In view of the Omnibus Resolution of the BOC, the respondent (petitioner therein) in his Memorandum prayed for the
nullification of the BOC’s Order, as well as its Omnibus Resolution denying his Urgent Motion for Reconsideration
considering that with the issuance of a new passport, there was no more basis for his deportation, thus:

RELIEF

WHEREFORE, it is most respectfully prayed of this Honorable Court that:

1. Upon the filing of this Memorandum, this Honorable Court forthwith direct and authorize the immediate
release of petitioner, even on undersigned’s recognizance, until further orders from this Honorable Court;

2. The Summary Deportation Order of September 27, 19[9]5, affirmed by respondent allegedly on June 14,
2002 and made known only yesterday, be nullified to the extent that it directs the deportation of petitioner,
who has removed the very basis of said Order of not having a valid passport, and that the Resolution of June
14, 2002 be nullified in toto; and,

3. The Temporary Restraining Order of June 26, 2002 be converted into a permanent injunction or writ of
prohibition.

Petitioner likewise prays for such other and further relief as may be deemed just and equitable in the premises.35

Surprisingly, the respondent’s counsel received on July 24, 2003 a Letter from the petitioner dated July 16, 2002
stating that, "the BOC was in the course of reviewing the deportation case against Mr. Scheer, and that its findings
would be given in due time."36

On August 20, 2002, the Court of Appeals rendered a Decision in favor of the respondent granting his petition for
certiorari and prohibition and permanently enjoining the petitioner from deporting the respondent. The decretal portion
of the Decision reads:

WHEREFORE, premises considered, the petitions for certiorari and prohibition are hereby GRANTED. Accordingly,
any order, oral or written, issued by respondent Commissioner Domingo against petitioner, in relation to his
deportation, is hereby ANNULLED, and respondent Commissioner Domingo is hereby permanently
enjoined/prohibited from deporting petitioner, in so far as this case is concerned.

It is likewise ordered that petitioner be released from his confinement/detention in the Bureau of Immigration UNLESS
there is/are fresh new grounds/cases that will warrant his continued detention.

SO ORDERED.37
The Court of Appeals ruled that the German Embassy’s subsequent issuance of passport to the respondent before
the BOC’s issuance of its Omnibus Resolution had mooted the September 27, 1995 Summary Deportation Order, as
well as the arrest and detention of the respondent. According to the court, it made no sense to require the respondent
to leave the country and thereafter re-apply for admission with the BOC. Furthermore, since the grounds cited by the
BOC in its Summary Deportation Order no longer existed, there was no factual and legal basis to disqualify the
respondent from staying in the country.

On the issue of whether the members of the BOC were indispensable parties, the CA ruled as follows:

a) There are quite a number of cases in relevant jurisprudence wherein only the Immigration Commissioner
was impleaded to decide whether an alien may stay or be deported, such as in the case of Vivo vs. Arca (19
SCRA 878) and Vivo vs. Cloribel (22 SCRA 159).

b) In the case of Caruncho III vs. COMELEC (315 SCRA 693), it was pronounced that: "Ordinarily, the
nonjoinder of an indispensable party or the real party interest is not by itself a ground for the dismissal of the
petition. The court before which the petition is filed must first require the joinder of such party. It is the
noncompliance with said order that would be a ground for the dismissal of the petition."

thus, c) respondent may be estopped for not raising such issue earlier.38

Aggrieved, the respondent therein, now the petitioner, through the Office of the Solicitor General, appealed to us for
relief. The petitioner contends that the Court of Appeals erred on a question of law in granting the respondent’s petition
in CA-G.R. SP No. 71094.39

In support of his contention, the Solicitor General has submitted the following arguments:

I. THE WRIT OF MANDAMUS DOES NOT LIE AGAINST THE COMMISSIONER OF THE BUREAU OF
IMMIGRATION TO RESOLVE RESPONDENT’S URGENT MOTION FOR RECONSIDERATION OF THE
SUMMARY DEPORTATION ORDER, CONSIDERING THAT IT IS THE BOARD OF COMMISSIONERS, AND
NOT THE COMMISSIONER ALONE, WHICH HAS AUTHORITY TO MAKE SAID RESOLUTION.

II. THE WRIT OF CERTIORARI DOES NOT LIE AGAINST THE COMMISSIONER OF THE BUREAU OF
IMMIGRATION, CONSIDERING THAT IT IS THE BOARD OF COMMISSIONERS, AND NOT THE
COMMISSIONER ALONE, WHICH ISSUED THE SUMMARY DEPORTATION ORDER AND THE OMNIBUS
RESOLUTION.

III. THE WRIT OF PROHIBITION DOES NOT LIE AGAINST THE COMMISSIONER OF THE BUREAU OF
IMMIGRATION, PROHIBITING THE IMPLEMENTATION OF THE SUMMARY DEPORTATION ORDER AND
THE OMNIBUS RESOLUTION, CONSIDERING THAT THE BOARD OF COMMISSIONERS WAS NOT
IMPLEADED AS PARTY-RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094.

IV. ASSUMING BUT WITHOUT ADMITTING THAT THE BOARD OF COMMISSIONERS WAS PROPERLY
IMPLEADED AS PARTY-RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094, NEVERTHELESS,
THE SUMMARY DEPORTATION ORDER AND THE OMNIBUS RESOLUTION WERE NOT ISSUED
WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF (SIC) EXCESS OF JURISDICTION.

V. FURTHER ASSUMING BUT WITHOUT ADMITTING THAT THE BOARD OF COMMISSIONERS WAS
PROPERLY IMPLEADED AS PARTY-RESPONDENT IN THE PETITION IN CA-G.R. SP NO. 71094, THE
COMMISSIONER OF THE BUREAU OF IMMIGRATION DID NOT ACT WITHOUT OR IN EXCESS OF
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN IMPLEMENTING THE SUMMARY DEPORTATION ORDER AND THE OMNIBUS
RESOLUTION.40

Elucidating on his first three arguments, the petitioner maintains that the respondent’s petition for certiorari, prohibition
and mandamus before the Court of Appeals should have been dismissed because he failed to implead the real party-
in-interest as mandated by Rule 3, Section 7 of the Rules of Court, as amended; in this case, the BOC. According to
the Solicitor General, this was a fatal procedural error. The inclusion of the BOC as respondent in the case was
necessary in order that its actions could be directly attacked and for the court to acquire jurisdiction over it. The fact
that Immigration Commissioner Andrea T. Domingo was impleaded as the sole respondent was not enough, as she
is only one of the four Commissioners. Furthermore, the assailed Orders were issued by the Board, and not by the
Immigration Commissioner alone.

The respondent counters that the petitioner is already estopped from raising this issue. He argues that -

In quite a number of jurisprudence, only the Immigration Commissioner is impleaded to decide whether an alien may
stay here or not. The bottom line is petitioner, head of the Bureau of Immigration, was more than fully heard on its
institutional position, a Bureau which speaks with a single voice in this case. She is in estoppel for not raising the
issue earlier, either in a timely Comment or during the oral argument…41

In Caruncho III v. Comelec, it was held that-

[O]rdinarily, the nonjoinder of an indispensable party or real party in interest is not by itself a ground for the dismissal
of the petition. The court before which the petition is filed must first require the joinder of such party. It is the
noncompliance with said order that would be a ground for the dismissal of the petition.

But even as the Court of Appeals did not require respondent of such joinder of parties, the respondent, in fact, begged
leave, ad cautelam, in its Reply Memorandum dated July 31, 2002 to implead the Board which speaks with a single
voice anyway in this case, and therefore, no claim can be made that a valid point of view has not been heard…42

Moreover, according to the respondent, the petitioner is clearly the BID’s chosen instrumentality for the relevant
purpose. What the respondent ultimately questioned are the acts or orders of the petitioner for the arrest and
immediate deportation of the respondent by way of implementing the BOC’s Summary Deportation Order.

By way of reply, the Office of the Solicitor General asserted that the Summary Deportation Order and Omnibus
Resolution were collegial actions of the BOC and not of the petitioner alone. Although its Chairperson, the petitioner,
is merely a member thereof, her decisions and actions are still subject to the collective will of the majority.43

The Ruling of the Court the BOC is an indispensable party

We agree with the petitioner’s contention that the BOC was an indispensable party to the respondent’s petition for
certiorari, prohibition and mandamus in the Court of Appeals. The respondent was arrested and detained on the basis
of the Summary Deportation Order of the BOC. The petitioner caused the arrest of the respondent in obedience to
the said Deportation Order. The respondent, in his Memorandum, prayed that the CA annul not only the Summary
Deportation Order of the BOC but also the latter’s Omnibus Resolution, and, thus, order the respondent’s immediate
release. The respondent also prayed that the CA issue a writ of mandamus for the immediate resolution of his Urgent
Motion for Reconsideration. The said motion had to be resolved by the BOC as the order sought to be resolved and
reconsidered was issued by it and not by the petitioner alone. The powers and duties of the BOC may not be exercised
by the individual members of the Commission.44

Section 7, Rule 3 of the Rules of Court, as amended, requires indispensable parties to be joined as plaintiffs or
defendants. The joinder of indispensable parties is mandatory. Without the presence of indispensable parties to the
suit, the judgment of the court cannot attain real finality.45 Strangers to a case are not bound by the judgment rendered
by the court.46 The absence of an indispensable party renders all subsequent actions of the court null and void. Lack
of authority to act not only of the absent party but also as to those present.47 The responsibility of impleading all the
indispensable parties rests on the petitioner/plaintiff.48

However, the non-joinder of indispensable parties is not a ground for the dismissal of an action. Parties may be added
by order of the court on motion of the party or on its own initiative at any stage of the action and/or such times as are
just.49 If the petitioner/plaintiff refuses to implead an indispensable party despite the order of the court, the latter may
dismiss the complaint/petition for the petitioner/plaintiff’s failure to comply therefor.50 The remedy is to implead the non-
party claimed to be indispensable.51 In this case, the CA did not require the respondent (petitioner therein) to implead
the BOC as respondent, but merely relied on the rulings of the Court in Vivo v. Arca,52 and Vivo v. Cloribel.53 The CA’s
reliance on the said rulings is, however, misplaced. The acts subject of the petition in the two cases were those of the
Immigration Commissioner and not those of the BOC; hence, the BOC was not a necessary nor even an indispensable
party in the aforecited cases.

The Non-joinder of an indispensable Party is not a Ground for the Dismissal of the Petition

The Court may be curing the defect in this case by adding the BOC as party-petitioner. The petition should not be
dismissed because the second action would only be a repetition of the first.54 In Salvador, et al., v. Court of Appeals,
et al.,55 we held that this Court has full powers, apart from that power and authority which is inherent, to amend the
processes, pleadings, proceedings and decisions by substituting as party-plaintiff the real party-in-interest. The Court
has the power to avoid delay in the disposition of this case, to order its amendment as to implead the BOC as party-
respondent. Indeed, it may no longer be necessary to do so taking into account the unique backdrop in this case,
involving as it does an issue of public interest.56 After all, the Office of the Solicitor General has represented the
petitioner in the instant proceedings, as well as in the appellate court, and maintained the validity of the deportation
order and of the BOC’s Omnibus Resolution. It cannot, thus, be claimed by the State that the BOC was not afforded
its day in court, simply because only the petitioner, the Chairperson of the BOC,57 was the respondent in the CA, and
the petitioner in the instant recourse. In Alonso v. Villamor,58 we had the occasion to state:

There is nothing sacred about processes or pleadings, their forms or contents. Their sole purpose is to facilitate the
1âwphi1

application of justice to the rival claims of contending parties. They were created, not to hinder and delay, but to
facilitate and promote, the administration of justice. They do not constitute the thing itself, which courts are always
striving to secure to litigants. They are designed as the means best adapted to obtain that thing. In other words, they
are a means to an end. When they lose the character of the one and become the other, the administration of justice
is at fault and courts are correspondingly remiss in the performance of their obvious duty.

The CA had Jurisdiction Over the Petition for Certiorari, Prohibition and Mandamus

We do not agree with the petitioner’s contention that the issue before the CA, as to the power of the President to
determine whether an alien may remain or be deported from the Philippines, is beyond the appellate court’s
competence to delve into and resolve. The contention of the petitioner is based on a wrong premise.

The settled rule is that the authority to exclude or expel aliens by a power affecting international relation is vested in
the political department of the government, and is to be regulated by treaty or by an act of Congress, and to be
executed by the executive authority according to the regulations so established, except in so far as the judicial
department has been authorized by treaty or by statute, or is required by the Constitution to intervene.59 The judicial
department cannot properly express an opinion upon the wisdom or the justice of the measures executed by Congress
in the exercise of the power conferred on it,60 by statute or as required by the Constitution. Congress may, by statute,
allow the decision or order of the Immigration Commissioner or the BOC to be reviewed by the President of the
Philippines or by the courts, on the grounds and in the manner prescribed by law.

Article VIII, Section 1 of the Constitution has vested judicial power in the Supreme Court and the lower courts such as
the Court of Appeals, as established by law. Although the courts are without power to directly decide matters over
which full discretionary authority has been delegated to the legislative or executive branch of the government and are
not empowered to execute absolutely their own judgment from that of Congress or of the President,61 the Court may
look into and resolve questions of whether or not such judgment has been made with grave abuse of discretion, when
the act of the legislative or executive department violates the law or the Constitution. In Harvy Bridges v. I.F.
Wixon,62 the United States Federal Supreme Court reversed an Order of Deportation made by the Attorney General
for insufficiency of evidence and for "improper admission of evidence." In Nging v. Nagh, 63 the United States Court of
Appeals (9th Circuit Court) held that conclusions of administrative offices on the issues of facts are invulnerable in
courts unless when they are not rendered by fair-minded men; hence, are arbitrary. In Toon v. Stump,64 the Court ruled
that courts may supervise the actions of the administrative offices authorized to deport aliens and reverse their rulings
when there is no evidence to sustain them. When acts or omissions of a quasi-judicial agency are involved, a petition
for certiorari or prohibition may be filed in the Court of Appeals as provided by law or by the Rules of Court, as
amended.65

In this case, the respondent alleges that the petitioner acted arbitrarily, contrary to law and with grave abuse of
discretion in causing his arrest and detention at a time when his Urgent Motion for Reconsideration of the BOC’s
Summary Deportation Order had yet to be resolved. There was no factual or legal basis for his deportation considering
that he was a documented alien and a law-abiding citizen; the respondent, thus, prayed for a writ of mandamus to
compel the petitioner, the Chairperson of the BOC, to resolve the said motion. The petition before the CA did not
involve the act or power of the President of the Philippines to deport or exclude an alien from the country. This being
so, the petition necessarily did not call for a substitution of the President’s discretion on the matter of the deportation
of the respondent with that of the judgment of the CA.

Irrefragably, the CA had jurisdiction over the petition of the respondent.

The BOC Committed a Grave Abuse of Discretion Amounting To Lack or Excess of Jurisdiction In Issuing its
Summary Deportation Order and Omnibus Resolution; The Petitioner Committed a Grave Abuse Of Her Discretion
Amounting to Lack or Excess of Jurisdiction in Causing the Arrest and Detention Of The Private Respondent

On the Solicitor General’s fourth and fifth arguments, we are convinced that the BOC committed a grave abuse of
discretion amounting to excess or lack of jurisdiction in issuing its Summary Deportation Order and Omnibus
Resolution, and that the petitioner committed grave abuse of discretion amounting to excess or lack of jurisdiction in
causing the arrest and detention of the private respondent.

The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege and a matter of grace; such
privilege is not absolute nor permanent and may be revoked. However, aliens may be expelled or deported from the
Philippines only on grounds and in the manner provided for by the Constitution, the Immigration Act of 1940, as
amended, and administrative issuances pursuant thereto. In Mejoff v. Director of Prisons,66 we held, thus:

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of international
law a part of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights" and approved by
the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December
10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed.
It was there resolved that "All human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is
entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, color,
sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status" (Art. 2);
that "Every one has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary
arrest, detention or exile" (Art. 9); etc.

In this case, the BOC ordered the private respondent’s deportation on September 27, 1995 without even conducting
summary deportation proceedings. The BOC merely relied on the June 29, 1995 Letter of the German Vice Consul
and of the German Embassy’s Note Verbale No. 369/95 dated July 26, 1995. It issued the Summary Deportation
Order on September 27, 1995 allegedly under paragraph 3 of Office Memorandum Order No. 34 dated August 21,
1989 which reads:

3. If a foreign embassy cancels the passport of the alien or does not reissue a valid passport to him, the alien loses
the privilege to remain in the country, under the Immigration Act, Sections 10 and 15 (Schonemann vs. Santiago, et
al., G.R. No. 81461, 30 May 1989). The automatic loss of the privilege obviates deportation proceedings. In such
instance, the Board of Commissioners may issue summary judgment of deportation which shall be immediately
executory.

However, as gleaned from the Summary Deportation Order, the respondent was ordered deported not only because
his passport had already expired; the BOC speculated that the respondent committed insurance fraud and illegal
activities in the Philippines and would not, thus, be issued a new passport. This, in turn, caused the BOC to conclude
that the respondent was an undesirable alien. Section 37(c) of Commonwealth Act No. 613, as amended, provides
that:

No alien shall be deported without being informed of the specific grounds for deportation or without being given a
hearing under rules of procedure to be prescribed by the Commissioner of Immigration.

Under paragraphs 4 and 5 of Office Memorandum Order No. 34, an alien cannot be deported unless he is given a
chance to be heard in a full deportation hearing, with the right to adduce evidence in his behalf, thus:

4. All other cases shall be tried in full deportation hearing, with due observance of the pertinent provisions of Law
Instruction No. 39.
5. In all cases, the right of the alien to be informed of the charges against him, to be notified of the time and place of
hearing, when necessary, to examine the evidence against him, and to present evidence in his own behalf, where
appropriate, shall be observed.

The respondent was not afforded any hearing at all. The BOC simply concluded that the respondent committed
insurance fraud and illegal activities in Palawan without any evidence. The respondent was not afforded a chance to
refute the charges. He cannot, thus, be arrested and deported without due process of law as required by the Bill of
Rights of the Constitution. In Lao Gi v. Court of Appeals,67 we held that:

Although a deportation proceeding does not partake of the nature of a criminal action, however, considering that it is
a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional
right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines
particularly on criminal procedure are applicable to deportation proceedings.

It must be noted that the respondent was a permanent resident before his passport expired on July 2, 1995. In Chew
v. Colding,68 the United States Federal Supreme Court ruled:

It is well established that if an alien is a lawful permanent resident of the United States and remains physically present
there, he is a person within the protection of the Fifth Amendment. He may not be deprived of his life, liberty or property
without due process of law. Although it later may be established, as respondents contend, that petitioner can be
expelled and deported, yet before his expulsion, he is entitled to notice of the nature of the charge and a hearing at
least before an executive or administrative tribunal. Although Congress may prescribe conditions for his expulsion
and deportation, not even Congress may expel him without allowing him a fair opportunity to be heard.

As Mr. Justice Murphy said in his concurring opinion in Bridges v. Wixon:69

The Bill of Rights belongs to them as well as to all citizens. It protects them as long as they reside within the boundaries
of our land. It protects them in the exercise of the great individual rights necessary to a sound political and economic
democracy.

According to Vattal,70 an alien who is a permanent resident in a country is a member of the new society, at least as a
permanent inhabitant, and is a kind of citizen of inferior order from the native citizens; but is, nevertheless, limited and
subject to the society, without participating in all its advantages. Sir Robert Philconse called them "de facto," though
not de jure citizens of the country of their domicile.71

Such permanent resident72 may be classified as a "denizen," a kind of middle state between alien and a natural-born
subject and partakes of both. Paraphrasing Justice Brewer in his dissenting opinion in Fong Yue Ting v. United
States,73 when the right to liberty and residence is involved, some other protection than the mere discretion of the
petitioner or the BOC is required. We recall the warning of the United States Supreme Court in Boyd v. United States:74

Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional
provisions for the security of person and property should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to a gradual depreciation of the right, as if it consisted more in sound
than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon. Their motto should be obsta principiis.

In sum, the arrest and detention of the respondent and his deportation under the Summary Deportation Order of the
BOC for insurance fraud and illegal activities in Palawan violated his constitutional and statutory rights to due process.

The Respondent’s Arrest and Detention was Premature, Unwarranted and Arbitrary

We agree that the Immigration Commissioner is mandated to implement a legal and valid Summary Deportation Order
within a reasonable time. But in this case, the arrest of the respondent in his house, at near midnight, and his
subsequent detention was premature, unwarranted and arbitrary. Like a thunderbolt in the sky, the BID agents and
marines arrested the respondent on June 6, 2002, on orders of the petitioner based on the September 27, 1995
Summary Deportation Order. Under the basic rudiments of fair play and due process, the petitioner was required to
first resolve the respondent’s Urgent Motion for Reconsideration of the said Order, which was filed more than six years
before or on December 5, 1995.

It may be argued that respondent’s filing of an Urgent Motion for Reconsideration did not ipso facto suspend the
efficacy of the BOC’s deportation order. However, such an argument cannot be sustained in this case because of the
extant and peculiar factual milieu. It bears stressing that more than six years had elapsed, from the time the Summary
Deportation Order was issued, until the respondent was finally arrested. Supervening facts and circumstances
rendered the respondent’s arrest and detention unjust, unreasonable, barren of factual and legal basis. The BOC
should have set the respondent’s motion for hearing to afford him a chance to be heard and adduce evidence in
support thereon. It was bad enough that the BOC issued its Summary Deportation Order without a hearing; the BOC
dealt the respondent a more severe blow when it refused to resolve his motion for reconsideration before causing his
arrest on June 6, 2002.

As aforestated, the BOC ordered the deportation of the respondent after a summary proceeding without prior notice
on the following grounds: (a) the respondent’s German passport had expired; (b) there was a pending criminal case
for physical injuries against him in Germany; (c) the respondent indulged in illegal activities in Palawan; (d) that in all
likelihood, the respondent’s passport will not be renewed by the German Embassy as he was wanted for insurance
fraud in Germany; and, (e) he was an undesirable alien. But then, in response to the written query of no less than the
petitioner herself, the German Embassy declared that the respondent was not wanted by the German police for any
crime, including insurance fraud. This could only mean that the warrant of arrest issued by the German Federal police
mentioned in Note Verbale No. 369/95 had been lifted, and that the respondent was not involved in any illegal activities
in Germany. The criminal case against the respondent for physical injuries, which does not involve moral turpitude,
was dismissed by the German District Court. Furthermore, there was no evidence of insurance fraud against the
respondent.

The BOC issued its Summary Deportation Order without affording the respondent the right to be heard on his motion
and adduce evidence thereon. It merely concluded that the respondent was involved in "illegal activities in Palawan."
What made matters worse was that the BOC indulged in sheer speculation, that the German Embassy is unlikely to
issue a new passport to the respondent. The deportation of aliens should not be based on mere speculation or a mere
product of procrastinations as in this case. As it turned out, the German Embassy re-issued the respondent’s passport;
he was issued a temporary passport, and, thereafter, a regular passport, yet to expire on March 12, 2006. The
petitioner cannot feign ignorance of this matter because the respondent himself, six years before he was arrested,
informed then Immigration Commissioner Verceles in a Letter dated March 1, 1996. The respondent’s letter forms
part of the records of the BOC. There is no evidence on record that the respondent committed any illegal activities in
Palawan. He was even designated as special agent of the NBI, and was, in fact, issued clearances by the PNP and
the NBI no less. Despite all the foregoing, the petitioner ordered and caused the arrest and detention of the
respondent.

What is most nettlesome is the apparent antedating of the BOC Omnibus Resolution. The records show that the
petitioner sought to assuage the respondent’s concern on the belated resolution of his pending urgent motion for
reconsideration in a Letter to the latter’s counsel dated July 18, 2002 in which the petitioner assured the respondent
that the BOC will provide him of its action on the said motion:

Dear Atty. Sagisag,

We respond to your letter of 17 June 2002 by informing you that the case of Mr. Herbert Scheer is being evaluated by
the Board of Commissioners (BOC). The BOC will provide you of the results of its collegial action in due time.

Very truly yours,

(Sgd.) ANDREA D. DOMINGO

Commissioner75

However, the Omnibus Resolution of the BOC was dated June 14, 2002, although on its face it was filed with the
Records Division of the BID only on July 18, 2002.

The foregoing gave reason for the CA to suspect that the Omnibus Resolution of the BOC was antedated.76 The petition
of the respondent in the CA must have jolted the petitioner and the BOC from its stupor because it came out with its
Omnibus Resolution on July 18, 2002, which was, however, dated as early as June 14, 2002. The respondent had to
wait in anxiety for the BOC to quench his quest for justice. The BOC’s wanton acts amounted to an abdication of its
duty to act and/or resolve cases/incidents with reasonable dispatch. To recall our ruling in Board of Commissioners
v. De la Rosa,77 citing Sheor v. Bengson,78 thus:

This inaction or oversight on the part of the immigration officials has created an anomalous situation which, for reasons
of equity, should be resolved in favor of the minor herein involved.

The petitioner and the BOC should have taken to heart the following pronouncement in Commissioner of Immigration
v. Fernandez:79

In the face of the disclosure that Teban Caoili had been all along working in the Avenue Electrical Supply Co. (Avesco),
located at No. 653 Rizal Avenue, Manila, until his arrest, and the documentary evidence showing that he had been
issued a Philippine Passport; had regularly paid his Residence Tax Certificates (A & B), and filed Income Tax Returns,
a finding of fact is necessary whether the Commissioner really had intended to notify Teban Caoili of the exclusion
proceedings the Board had conducted in his absence. While it may be true that the proceedings is purely
administrative in nature, such a circumstance did not excuse the serving of notice. There are cardinal primary rights
which must be respected even in proceedings of administrative character, the first of which is the right of the party
interested or affected to present his own case and submit evidence in support thereof.80

Since the proceedings affected Caoili’s status and liberty, notice should have been given. And in the light of the
actuations of the new Board of Commissioners, there is a necessity of determining whether the findings of the Board
of Special Inquiry and the old Board of Commissioners are correct or not. This calls for an examination of the evidence,
and, the law on the matter.81

Apparently, the BOC did not bother to review its own records in resolving the respondent’s Urgent Motion for
Reconsideration. It anchored its Omnibus Resolution only on the following: the membership of the BOC had changed
when it issued its September 27, 1995 Summary Deportation Order and under Commonwealth Act No. 613, Section
27(b); the BOC is precluded from reversing a previous order issued by it;82 and, the September 27, 1995 Order of the
BOC had become final and could no longer be reviewed and reversed by it after the lapse of one year.83 However, the
rulings cited by the petitioner are not applicable in the instant case, as the said cases cited involve appeals to the
BOC from the decisions of the Board of Special Inquiry (BSI). In Sy v. Vivo 84 and Lou v. Vivo,85 we ruled that under
Section 27(b) of Commonwealth Act No. 613, as amended, the Decision of the BOC on appeal from the decision of
the BSI becomes final and executory after one year:

(b) A board of special inquiry shall have authority (1) to determine whether an alien seeking to enter or land in the
Philippines shall be allowed to enter or land or shall be excluded, and (2) to make its findings and recommendations
in all the cases provided for in section twenty-nine of this Act wherein the Commissioner of Immigration may admit an
alien who is otherwise inadmissible. For this purpose, the board or any member thereof, may administer oaths and
take evidence and in case of necessity may issue subpoena and/or subpoena duces tecum. The hearing of all cases
brought before a board of special inquiry shall be conducted under rules of procedure to be prescribed by the
Commissioner of Immigration. The decision of any two members of the board shall prevail and shall be final unless
reversed on appeal by the Board of Commissioners as hereafter stated, or in the absence of an appeal, unless
reversed by the Board of Commissioners after a review by it, motu propio, of the entire proceedings within one year
from the promulgation of the decision.

In Commissioner of Immigration v. Fernandez,86 we held that the BOC composed of new members is precluded from
reversing, motu proprio, the decision of the BOC on appeal from a BSI decision. But not to be ignored was our ruling
that "at any rate, the issue of authority should be made in accordance with the procedure established by law, with a
view to protecting the rights of individuals."87

In this case, the Summary Deportation Order was issued by the BOC in the exercise of its authority under Office
Memorandum Order No. 34, and not in the exercise of its appellate jurisdiction of BSI decisions. There is no law nor
rule which provides that a Summary Deportation Order issued by the BOC in the exercise of its authority becomes
final after one year from its issuance,88 or that the aggrieved party is barred from filing a motion for a reconsideration
of any order or decision of the BOC. The Rules of Court may be applied in a suppletory manner to deportation
proceedings89 and under Rule 37, a motion for reconsideration of a decision or final order may be filed by the aggrieved
party.
Neither is there any law nor rule providing that the BOC, composed of new members, cannot revise a Summary
Deportation Order previously issued by a different body of Commissioners. The BOC that issued the Summary
Deportation Order and the BOC which resolved the respondent’s Urgent Motion for Reconsideration are one and the
same government entity, with the same powers and duties regardless of its membership. Similarly, an RTC judge who
replaces another judge who presided over a case may review the judgment or order of his predecessor as long as the
said judgment or order has not as yet become final or executory. The act subject of review is not the act of the judge
but the act of the court.

The petitioner’s contention that it failed to resolve the respondent’s motion for reconsideration because of the change
of administration in the BOC was branded by the CA as flimsy, if not bordering on the absurd:

Firstly, it was issued three days (June 14, 2002) after petitioner filed this instant petition on June 11, 2002 or almost
seven years from the time the motion for reconsideration was filed;

Secondly, respondent’s counsel’s excuse that it took such time to resolve it because it was only later that the motion
for reconsideration was discovered because of change of administration, is flimsy, if not bordering on the absurd;90

The Issuance of a New and Regular Passport to the Respondent Rendered the Summary Deportation Order Moot
and Academic, and the Omnibus Resolution of the BOC Lacking in Legal Basis

We agree with the petitioner that a foreign embassy’s cancellation of the passport it had issued to its citizens, or its
refusal to issue a new one in lieu of a passport that has expired, will result in the loss of the alien’s privilege to stay in
this country and his subsequent deportation therefrom. But even the BOC asserted in its Summary Deportation Order
that an embassy’s issuance of a new passport to any of its citizens may bar the latter’s deportation, citing the resolution
of this Court in Schonemann v. Commissioner Santiago.91

Irrefragably, Commissioner Verceles was mandated to cause the arrest of the respondent preparatory to his
deportation from the Philippines. However, there was no fixed period in the Order within which to comply with the
same. The Commissioner is not mandated to deport an alien immediately upon receipt of the BOC’s deportation order.
It is enough that the Commissioner complies with the Order within a "reasonable time," which, in Mejoff v. Director of
Prisons,92 we held to connote as follows:

The meaning of "reasonable time" depends upon the circumstances, specially the difficulties of obtaining a passport,
the availability of transportation, the diplomatic arrangements with the governments concerned and the efforts
displayed to send the deportee away; but the Court warned that "under established precedents, too long a detention
may justify the issuance of a writ of habeas corpus.

In this case, the BOC had yet to act on the respondent’s Urgent Motion for Reconsideration. The respondent was also
given a chance to secure a clearance and a new passport with the German Embassy. After all, the possibility that the
German Embassy would renew the respondent’s passport could not be ruled out. This was exactly what happened:
the German Embassy issued a new passport to the respondent on March 12, 1996 after the German District Court
dismissed the case for physical injuries. Thus, the respondent was no longer an undocumented alien; nor was he an
undesirable one for that matter.

The petitioner even admits that there is no longer a legal or factual basis to disqualify the respondent from remaining
in the country as a permanent resident. Yet, the OSG insists that he has to be deported first so that the BOC’s
Summary Deportation Order could be implemented. This contention was rejected by the CA, thus:

During the hearing of petitioner’s prayer for issuance of a writ of preliminary injunction before Us, respondent’s counsel
from the Office of the Solicitor General had the occasion to manifest in open court that the State has no opposition to
petitioner’s stay in the country provided he first leave and re-enter and re-apply for residency if only to comply with
the Summary Deportation Order of 1995. That, to Our mind, seems preposterous, if not ridiculous. An individual’s
human rights and rights to freedom, liberty and self-determination recognize no boundaries in the democratic, free
and civilized world. Such rights follow him wherever he may be. If presently, there is no factual or legal impediment to
disqualify petitioner in his stay in the country, other than allegedly those relied upon in the Summary Deportation Order
of 1995 (as hereinbefore discussed, had ceased to exist), requiring petitioner to leave the country and re-enter and
re-apply for residency makes little sense or no sense at all, more so, in the case of petitioner who, for many years
past, had lived herein and nurtured a family that is Filipino.
Thus, opined, We, therefore, believe and hereby rule, that there is presently every reason to enjoin/prohibit the Bureau
of Immigration, respondent Commissioner Domingo in particular, from presently deporting petitioner.93

We agree with the Court of Appeals. The Summary Deportation Order had been rendered moot and academic upon
the German Embassy’s issuance of a new passport to the respondent. The respondent had been in the Philippines
as a permanent resident since July 18, 1986, and had married a Filipino citizen, with whom he has two children. He
is not a burden to the country nor to the people of Palawan. He put up, and has been managing, the Bavaria Restaurant
with about 30 employees. He has no pending criminal case; nor does he have any derogatory record. The respondent
was allowed by then Immigration Commissioner Verceles to renew his passport and was given time to secure a
clearance from the German Embassy. The respondent was able to do so. The case against him for physical injuries
was dismissed by the German District Court. Thus, the inceptual basis for the respondent’s deportation had ceased
to exist.

The power to deport is a police matter against undesirable aliens, whose presence in the country is found to be
injurious to the public good. We believe that the deportation of the respondent late in the day did not achieve the said
purpose. The petitioner admitted that there is no longer a factual and legal basis to disqualify the respondent from
staying in the country. He is not an undesirable alien; nor is his presence in the country injurious to public good. He is
even an entrepreneur and a productive member of society.

Arrest, detention and deportation orders of aliens should not be enforced blindly and indiscriminately, without regard
to facts and circumstances that will render the same unjust, unfair or illegal.94 To direct the respondent to leave the
country first before allowing him re-entry is downright iniquitous.95 If the respondent does leave the country, he would
thereby be accepting the force and effect of the BOC’s Summary Deportation Order with its attendant infirmities. He
will thereby lose his permanent resident status and admit the efficacy of the cancellation of his permanent resident
visa. Moreover, his entry into the country will be subject to such conditions as the petitioner may impose.

The deportation of an alien is not intended as a punishment or penalty. But in a real sense, it is. In Bridges v.
1âw phi1

Wixon,96 Mr. Justice Murphy declared that the impact of deportation upon the life of an alien is often as great if not
greater than the imposition of a criminal sentence. In dealing with deportation, there is no justifiable reason for
disregarding the democratic and human tenets of our legal system and descending to the practices of despotism. As
Justice Brewer opined in Fong Yue Ting v. United States,97 deportation is a punishment because it requires first, an
arrest, a deprivation of liberty and second, a removal from home, from family, from business, from property. To be
forcibly taken away from home, family, business and property and sent across the ocean to a distant land is
punishment; and that oftentimes is most severe and cruel. It would be putting salt on the respondent’s woes
occasioned by the BOC’s ineptitude. Considering the peculiar backdrop and the equities in this case, the respondent’s
deportation and the cancellation of his permanent resident visa as a precondition to his re-entry into this country is
severe and cruel; it is a form of punishment.

Our ruling in Vivo v. Cloribel,98 has no application in this case, precisely because the factual milieu here is entirely
different. In that case, the Commissioner of Immigration required the respondents to leave the country on or before
September 12, 1962, because their stay in the country as approved by the Secretary of Justice had been cancelled.
Our ruling in Bing v. Commission on Immigration,99 even buttresses the case for the respondent since we ruled therein
that an alien entitled to a permanent stay cannot be deported without being accorded due notice and hearing.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

G.R. No. 84818 December 18, 1989

PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,

vs.
JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.

REGALADO, J.:
This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner
Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such
services in the Philippines.

The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis Alcuaz
of the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which directs the
provisional reduction of the rates which may be charged by petitioner for certain specified lines of its services by fifteen
percent (15%) with the reservation to make further reductions later, for being violative of the constitutional prohibition
against undue delegation of legislative power and a denial of procedural, as well as substantive, due process of law.

The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514,
PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such places
as the grantee may select, station or stations and associated equipment and facilities for international satellite
communications." Under this franchise, it was likewise granted the authority to "construct and operate such ground
facilities as needed to deliver telecommunications services from the communications satellite system and ground
terminal or terminals."

Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the
following installations:

1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal.

2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct
satellite communication links with the Pacific Ocean Region (the United States, Australia, Canada,
Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean
INTELSAT satellite.

3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II
provided links with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other
Asia Pacific countries operating within the region) thru the Indian Ocean INTELSAT satellite.

4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily
assume the functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III
now serves as spare or reserved antenna for possible contingencies.

5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field,
Pampanga as a television receive-only earth station which provides the U.S. Military bases with a 24-
hour television service.

6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to
take over the links in Pinugay I due to obsolescence. 3

By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the
Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization
(INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the International
Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial telecommunications
satellite corporations were collectively established by various states in line with the principles set forth in Resolution
1721 (XVI) of the General Assembly of the United Nations.

Since 1968, the petitioner has been leasing its satellite circuits to:

1. Philippine Long Distance Telephone Company;

2. Philippine Global Communications, Inc.;

3. Eastern Telecommunications Phils., Inc.;

4. Globe Mackay Cable and Radio Corp. ITT; and

5. Capitol Wireless, Inc.

or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international carriers
to serve the public with indispensable communication services, such as overseas telephone, telex, facsimile,
telegrams, high speed data, live television in full color, and television standard conversion from European to American
or vice versa.

Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service
Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987,
petitioner was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities and
services and the fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner to apply
for the requisite certificate of public convenience and necessity covering its facilities and the services it renders, as
well as the corresponding authority to charge rates therefor.

Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority to
continue operating and maintaining the same facilities it has been continuously operating and maintaining since 1967,
to continue providing the international satellite communications services it has likewise been providing since 1967,
and to charge the current rates applied for in rendering such services. Pending hearing, it also applied for a provisional
authority so that it can continue to operate and maintain the above mentioned facilities, provide the services and
charge therefor the aforesaid rates therein applied for.

On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities, to
render the services it was then offering, and to charge the rates it was then charging. This authority was valid for six
(6) months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was extended
for another six (6) months, or up to September 16, 1988.

The NTC order now in controversy had further extended the provisional authority of the petitioner for another six (6)
months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates through a
reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered said reduction
on the following ground:

The Commission in its on-going review of present service rates takes note that after an initial
evaluation by the Rates Regulation Division of the Common Carriers Authorization Department of the
financial statements of applicant, there is merit in a REDUCTION in some of applicant's rates, subject
to further reductions, should the Commission finds (sic) in its further evaluation that more reduction
should be effected either on the basis of a provisional authorization or in the final consideration of the
case. 6

PHILCOMSAT assails the above-quoted order for the following reasons:

1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service
communications does not provide the necessary standards constitutionally required, hence there is an undue
delegation of legislative power, particularly the adjudicatory powers of NTC;

2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was exercised
in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural due process
for having been issued without prior notice and hearing; and (b) the rate reduction it imposes is unjust, unreasonable
and confiscatory, thus constitutive of a violation of substantive due process.

I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of
respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing petitioner under the
jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise of its
rate-fixing and adjudicatory powers. While petitioner in its petition-in-chief raised the issue of undue delegation of
legislative power, it subsequently clarified its said submission to mean that the order mandating a reduction of certain
rates is undue delegation not of legislative but of quasi-judicial power to respondent NTC, the exercise of which
allegedly requires an express conferment by the legislative body.

Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546
and 196 on the ground that the same do not fix a standard for the exercise of the power therein conferred.

We hold otherwise.

Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some
standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of
the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this
case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner
prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes
unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is required to
prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been
held that even in the absence of an express requirement as to reasonableness, this standard may be implied. 7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required
by the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and
prescribe rates pertinent to the operation of public service communications which necessarily include the power to
promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546,
respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of
maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section
6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and
supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network
or components of the communications systems contemplated therein should be maintained at reasonable rates. We
need not go into an in-depth analysis of the pertinent provisions of the law in order to conclude that respondent NTC,
in the exercise of its rate-fixing power, is limited by the requirements of public safety, public interest, reasonable
feasibility and reasonable rates, which conjointly more than satisfy the requirements of a valid delegation of legislative
power.

II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued
motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was
based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity
to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the
consequent deterioration of the public service could have been shown and demonstrated to respondents. Petitioner
argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not quasi-
legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process.

Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is
quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice
and hearing are not required, but where an order applies to a named person, as in the instant case, the function
involved is adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need not be
preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the
assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a
certificate of public convenience; and that petitioner is not the only primary source of data or information since
respondent is currently engaged in a continuing review of the rates charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service Commission,9 we made a categorical classification as to when the
rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus:

Moreover, although the rule-making power and even the power to fix rates- when such rules and/or
rates are meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a
legislative character, such is not the nature of the order complained of. Indeed, the same applies
 exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a
report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of
its invested capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the
maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or
complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other
words, in making said finding of fact, respondent performed a function partaking of a quasi-judicial
character, the valid exercise of which demands previous notice and hearing.

This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. 10 to
wit:

It is also clear from the authorities that where the function of the administrative body is legislative,
notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md.
L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially
legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future
action which affects a group, if vested rights of liberty or property are not involved, is not determined
according to the same rules which apply in the case of the direct application of a policy to a specific
individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452
and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding
depends on the character of the proceeding and the circumstances involved. In so far as generalization
is possible in view of the great variety of administrative proceedings, it may be stated as a general rule
that notice and hearing are not essential to the validity of administrative action where the administrative
body acts in the exercise of executive, administrative, or legislative functions; but where a public
administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate
rather than general and prospective, the person whose rights or property may be affected by the action
is entitled to notice and hearing. 11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial
adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is
premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates
charged- based on an initial evaluation of petitioner's financial statements-without affording petitioner the benefit of
an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate
reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted
respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner
could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it
charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public
service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's
ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service
to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay
involved. Notably, petitioner was not even afforded the opportunity to cross-examine the inspector who issued the
report on which respondent NTC based its questioned order.

At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued
pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed
order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of
merit.

While respondents may fix a temporary rate pending final determination of the application of petitioner, such rate-
fixing order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and
hearing, as well as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not
exercise the same in an arbitrary and confiscatory manner. Categorizing such an order as temporary in nature does
not perforce entail the applicability of a different rule of statutory procedure than would otherwise be applied to any
other order on the same matter unless otherwise provided by the applicable law. In the case at bar, the applicable
statutory provision is Section 16(c) of the Public Service Act which provides:

Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have
power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject
to the limitations and exceptions mentioned and saving provisions to the contrary:
 xxx xxx xxx

(c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed
thereafter by any public service; ...

There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no limiting,
excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196.

It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving
petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made
upon a complaint, a summary investigation, or upon the commission's own motion as in the present case. That such
a hearing is required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted
PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the services it presently
offers, and to charge the rates as reduced by them "under the condition that "(s)ubject to hearing and the final
consideration of the merit of this application, the Commission may modify, revise or amend the rates ..." 12

While it may be true that for purposes of rate-fixing respondents may have other sources of information or data, still,
since a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not on
knowledge or information otherwise acquired by it but which is not offered in evidence or, even if so adduced, petitioner
was given no opportunity to controvert.

Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final legislative
act as to the period during which it has to remain in force pending the final determination of the case. 13 An order of
respondent NTC prescribing reduced rates, even for a temporary period, could be unjust, unreasonable or even
confiscatory, especially if the rates are unreasonably low, since the utility permanently loses its just revenue during
the prescribed period. In fact, such order is in effect final insofar as the revenue during the period covered by the order
is concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and will unduly deprive
petitioner of a reasonable return upon its property, a declaration of its nullity becomes inductible, which brings us to
the issue on substantive due process.

III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a
cessation of its operations and eventual closure of business. On the other hand, respondents assert that since
petitioner is operating its communications satellite facilities through a legislative franchise, as such grantee it has no
vested right therein. What it has is merely a privilege or license which may be revoked at will by the State at any time
without necessarily violating any vested property right of herein petitioner. While petitioner concedes this thesis of
respondent, it counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary,
but it must be fair and reasonable.

There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment,
alteration, or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot be
unilaterally revoked absent a showing that the termination of the operation of said utility is required by the common
good.

The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the
consideration that it is not the owner of the property of the utility, or clothed with the general power of management
incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the
regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power
to protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then
of the utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property
or constitutes an arbitrary or unreasonable infringement of property rights is void, because it is repugnant to the
constitutional guaranties of due process and equal protection of the laws. 15

Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public
utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A commission
has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of
reasonableness comprehends such rates which must not be so low as to be confiscatory, or too high as to be
oppressive. 16
What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the
evidence 17 it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and
independent judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given
situation, requirements and opportunities of the utility. A method often employed in determining reasonableness is the
fair return upon the value of the property to the public utility. Competition is also a very important factor in determining
the reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet competition. 19

A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial
evaluation made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has several
other sources of information without, however, divulging such sources. Furthermore, it did not as much as make an
attempt to elaborate on how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial
statements, there is merit for a rate reduction without any elucidation on what implications and conclusions were
necessarily inferred by it from said statements. Nor did it deign to explain how the data reflected in the financial
statements influenced its decision to impose a rate reduction.

On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public service,
should the order of respondent NTC turn out to be unreasonable and improvident. The business in which petitioner is
engaged is unique in that its machinery and equipment have always to be taken in relation to the equipment on the
other end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery
and equipment necessarily entails a major adjustment or innovation on the business of petitioner. As pointed out by
petitioner, any change in the sending end abroad has to be matched with the corresponding change in the receiving
end in the Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding change
in the sending end in the Philippines. An inability on the part of petitioner to meet the variegations demanded be
technology could result in a deterioration or total failure of the service of satellite communications.

At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its machinery
and equipment in order to keep up with the continuing charges of the times and to maintain its facilities at a competitive
level with the technological advances abroad. There projected undertakings were formulated on the premise that rates
are maintained at their present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a
cessation of its business. While we concede the primacy of the public interest in an adequate and efficient service,
the same is not necessarily to be equated with reduced rates. Reasonableness in the rates assumes that the same is
fair to both the public utility and the consumer.

Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative of
the due process clause is void and should be nullified. Respondents should now proceed, as they should heretofore
have done, with the hearing and determination of petitioner's pending application for a certificate of public convenience
and necessity and in which proceeding the subject of rates involved in the present controversy, as well as other matter
involved in said application, be duly adjudicated with reasonable dispatch and with due observance of our
pronouncements herein.

WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC
Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of September 13,
1988, as specifically directed against the aforesaid order of respondents on the matter of existing rates on petitioner's
present authorized services, is hereby made permanent.

SO ORDERED.